defendant san francisco unified school districts memorandum of points

Cal. Super. - 1st Dist.August 6, 2021

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 32 1 DISTRICT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT Eugene B. Elliot, State Bar No. 111475 Ethan M. Lowry, State Bar No. 278831 Heather G. Hensley, State Bar No. 313860 BERTRAND, FOX, ELLIOT, OSMAN & WENZEL 2749 Hyde Street San Francisco, California 94109 Telephone: (415) 353-0999 Facsimile: (415) 353-0990 Email: eelliot@bfesf.com elowry@bfesf.com hhensley@bfesf.com Attorneys for Defendant SAN FRANCISCO UNIFIED SCHOOL DISTRICT SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO DARLENE M. ANAYA, Plaintiff, v. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, Defendant. Case No. CGC-20-587614 DEFENDANT SAN FRANCISCO UNIFIED SCHOOL DISTRICT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF’S COMPLAINT Date: April 13, 2021 Time: 9:30 a.m. Dept.: 302 Hon. Richard B. Ulmer I. INTRODUCTION Plaintiff DARLENE ANAYA brings this action against defendant SAN FRANCISCO UNIFIED SCHOOL DISTRICT (the “DISTRICT”) for discrimination and retaliation that allegedly occurred while she was employed as a teacher. Her discrimination claims are based on her age and disability, and she claims that, because she did not receive the designation of Teacher on Special Assignment (“TSA”) and was instead assigned to be a regular classroom teacher, the DISTRICT failed to reasonably accommodate her disability. Her Complaint fails to allege that the alleged adverse employment actions were in any way connected to her age. She claims that her disability was not reasonably accommodated, but she fails to put the DISTRICT on notice of what accommodations were required. She further claims that her Exempt from all Court Filing Fees Pursuant to Government Code §6103 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 03/17/2021 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 32 2 DISTRICT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT privacy rights were violated based on a single email from her supervisor stating that someone from the DISTRICT’s Human Resources Department would be reaching out to assist her with her medical needs. Therefore, the DISTRICT demurs to the Second, Third, Sixth, and Seventh Causes of Action of Plaintiff’s Complaint on the grounds that she fails to allege facts sufficient to state claims under the California Fair Employment and Housing Act (“FEHA”) for the following reasons: (1) Plaintiff fails to plead sufficient facts to support a claim for age discrimination because nothing in the Complaint suggests the alleged adverse employment action(s) had anything to do with Plaintiff’s age; (2) Plaintiff fails to plead sufficient facts to support a cause of action for failure to reasonably accommodate her disability because she only alleges that she did not receive her first choice of assignment; (3) Plaintiff fails to plead a statutory basis for her claim of negligent failure to prevent harassment, discrimination or retaliation; and (4) Plaintiff fails to plead sufficient facts to support a claim that her right to medical privacy was violated, as the single alleged email does not constitute an improper inquiry under FEHA. II. FACTS ALLEGED IN COMPLAINT Plaintiff has been employed by the DISTRICT for over 18 years, including many years as a classroom teacher. (Plaintiff’s Complaint, filed on November 10, 2020, (hereinafter “Complaint”) 4:2- 6.) She is a certified teacher, senior citizen and disabled employee. (Id.) On or around September 4, 2012, she was placed in a position at the DISTRICT as a Teacher on Special Assignment (“TSA”) at the Counseling Center, which accommodated her disability. (Id. at 4:7-8.) She was successful in this position for over five years, but in or around August 2018 Rachel Noto became the Assistant Principal of the Counseling Center, and Ms. Noto and her supervisor, Alysse Castro, began to discriminate against Plaintiff. (Id. at 4:11-14.) Plaintiff experienced “[h]eightened scrutiny… including pretextual evaluations.” (Id. at 4:17.) Ms. Noto could not judge Plaintiff’s performance fairly because there was no formal job description for her position, and Ms. Noto did not adhere to the labor code when evaluating her. (Id. at 4:20-27.) Ms. Noto and/or her supervisor Alysse Castro added new and substantial responsibilities to Plaintiff’s position. (Id. at 5:3-5.) This was pretextual because in the past Plaintiff 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 32 3 DISTRICT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT was not expected to carry out these responsibilities, and they were responsibilities that could not reasonably be expected of a classroom teacher - such as “abilities to teach all middle school and high school subjects.” (Id. at 5:5-10.) Plaintiff experienced “[m]edical privacy violations/inquiring into plaintiff’s medical conditions without cause or permission.” (Id. at 5:10-12.) On November 11, 2018, Ms. Noto emailed Plaintiff saying that someone would be “reaching out to plaintiff regarding plaintiff’s medical needs.” (Id. at 5:12-13.) “Based on information and belief, Rachel Noto and/or her supervisor, Alysse Castro, breached plaintiff’s medical privacy by communicating with HR regarding plaintiff’s medical history and/or medical conditions without cause or permission.” (Id. at 5:14-16.) “On November 29, 2018, plaintiff’s doctor reiterated that plaintiff’s accommodations are permanent and that her current Teacher on Special Assignment position at the Counseling Center accommodated her disability.” (Id. at 6:10-12.) The DISTRICT provided “[s]hifting explanations for its misconduct.” (Id. at 5:16-17.) “First, plaintiff was given a negative evaluation, despite Ms. Noto not knowing of the day-to-day operations of the Counseling Center because she was recently arrived.” (Id. at 5:18-19.) Next, the evaluation was rescinded. (Id. at 5:22-24.) “Then, Rachel Noto laid off plaintiff, while she was sick in the hospital, under the guise of a ‘consolidation.’” (Id. at 5:5-10.) After Plaintiff’s consolidation in April 2019, she was assigned by the DISTRICT to the School of the Arts (“SOTA”) as a classroom teacher. (Id. at 6:17-19.) This position was not a reasonable accommodation of her disability, and her last day at SOTA was August 29, 2019. (Id. at 6:20-22.) The DISTRICT failed to engage in the good faith interactive process, because following her departure from SOTA, the DISTRICT refused to consider Plaintiff for a TSA position, one of the positions that would accommodate her disability. (Id. at 7:6-8.) On September 27, 2019, the DISTRICT “HR suggested that Plaintiff work as a lunchroom worker or paraprofessional, despite the fact that it would pay less than half her salary” and did not accommodate her disability. (Id. at 7:9-11.) This was discrimination based on her disability and age. (Id. at 7:11-12.) “In letters dated October 24 and 25, and December 21, 2018, plaintiff wrote to [DISTRICT] administration and explained that she was being discriminated against by [DISTRICT] employee Rachel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 32 4 DISTRICT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT Noto.” (Id. at 7:20-22.) Plaintiff also notified Alysse Castro of the discrimination and harassment. (Id. at 7:22-24.) At an in-person meeting on September 27, 2019, with DISTRICT administration, Plaintiff complained that the DISTRICT “was not helping plaintiff find a job that accommodated her disabilities because they would not consider her for a TSA position.” (Id. at 8:1-4.) As a result of the DISTRICT’s discriminatory and illegal conduct, Plaintiff has incurred substantial monetary damages. (Id. at 8:8-9.) III. ARGUMENT A. A Demurrer is Proper in this Case California Code of Civil Procedure Section 430.10(e) provides that a demurrer should be sustained when the pleading does not cite facts sufficient to constitute a cause of action. Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43 (citing Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879-880).) When reviewing demurrers, courts are guided by long-settled principles. Courts “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer is proper when any ground for objection appears on the face of the complaint or from any matter of which the court may take judicial notice. (Code Civ. Proc. §430.30.) A demurrer should be sustained without leave to amend unless there is a “reasonable possibility” that the defects in the pleading can be cured by amendment, and the burden is on the plaintiff to show how the pleadings can be amended to change their legal effect. (Hendy v. Losse (1991) 54 Cal.3d 723, 742; McKelvey v. Boeing North American, Inc. (1999) 74 Cal. App. 4th 151, 163 (superseded in part on other unrelated grounds, Grisham v. Phillip Morris (2007) 40 Cal.4th 623, 637.) Moreover, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, “to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” (Lopez v. Southern California Rapid Transit Dist. (1985) 40 Cal.3d 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 32 5 DISTRICT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 780, 795; see Mittenhuber v. City of Redondo Beach, (1983) 142 Cal. App. 3d 1, 5; see Brenner v. City of El Cajon, (2003) 113 Cal. App. 4th 434, 439.) Additionally, causes of action against public entities and their employees must be pleaded with particularity. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) A plaintiff must set forth specific and sufficiently detailed facts to support each element of liability. (Mittenhuber, 142 Cal. App. 3d at 5.) General allegations are inadequate. (Id.) B. Plaintiff Fails to Plead Sufficient Facts to Support a Claim for Age Discrimination Because Nothing in the Complaint Suggests the Alleged Adverse Employment Action Had Anything to Do with Plaintiff’s Age A prima facie case of discrimination includes “a set of circumstances that, if unexplained, permit an inference that it is more likely than not the employer intentionally treated the employee less favorably than others on prohibited grounds.” (Jones v. Department of Corrections (2007) 152 Cal.App.4th 1367, 1379.) A plaintiff must plead the essential facts of the case with particularity sufficient to acquaint a defendant with the nature, source, and extent of the FEHA cause of action. (Alch v. Superior Court (2004) 122 Cal.App.4th 339, 382.) A plaintiff claiming age discrimination under the FEHA must allege sufficient facts to establish that she (1) is over the age of 40; (2) suffered an adverse employment action; and (3) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., that Plaintiff’s age was a substantial motivating reason for the adverse employment action. (See Govt. Code §12940; Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321; Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.) At a minimum, Plaintiff must plead facts that plausibly indicate that similarly situated employees were treated differently. (Mixon v. Fair Employment and Housing Commission (1987) 192 Cal.App.3d 1306, 1318.) Here, Plaintiff alleges that she is a senior citizen and that she was “consolidated, or laid off.” For the purposed of this demurrer only, the DISTRICT acknowledges that these allegations are sufficient to establish that she was over 40 and subject to an adverse employment action. However, Plaintiff does not allege any facts that would support an inference of discriminatory motive based on any protected characteristics. Instead, she only makes conclusory statements without any factual support that she was discriminated against based on her age. She merely alleges that she was discriminated against and happens to be a senior citizen. There is no connection between her protected class status and the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 32 6 DISTRICT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT “consolidation, or laying off.” Such bare speculation cannot support a prima facie case of discrimination. (See e.g., in the case of racial discrimination claims, Jenkins v. MCI Telecommunications Corp. (C.D. Cal. 1997) 973 F.Supp. 1133, 1137 [“Mr. Jenkins merely concludes that because he made his work- related complaints to Mr. Ken Vogel, a white employee, his subsequent dismissal ‘must be’ the result of racial prejudice. Such bare speculation cannot support a prima facie case of discrimination.”].) Furthermore, Plaintiff fails to allege any facts supporting a conclusion that similarly-situated persons under 40 years of age were treated more favorably. She does not allege that younger employees were provided better opportunities, or that she was replaced by a younger employee. She does not set forth any facts alleging what, if anything, her age had to do with her alleged negative treatment. Plaintiff has failed to set forth specific and sufficiently detailed facts to support each element of age discrimination, and thus her general allegations are inadequate and cannot survive demurrer. (See, Mittenhuber, 142 Cal. App. 3d at 5.) C. Plaintiff Fails to Plead Sufficient Facts to Support a Cause of Action for Failure to Reasonably Accommodate Her Disability, Because She Only Alleges that She Did Not Receive Her First Choice of Assignment To establish a prima facie case for failure to reasonably accommodate a disability under California Government Code Section 12940(m), the plaintiff must show that she had a disability and that the employer did not make reasonable accommodations for her known disability. (Bagatti v. Dept. of Rehab. (2002) 97 Cal. App. 4th 344, 353-356.) Under the FEHA, “reasonable accommodation” means “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 974.) A reasonable accommodation does not require the employer to reallocate the essential functions of an employee’s position, essentially creating a new position for the employee and changing the essential functions of another employee. (Raine v. City of Burbank (2006) 135 Cal. App.4th 1215, 1228.) The employer need not adopt the most reasonable accommodation, nor must the employer accept the remedy preferred by the employee. (Soldinger v. Northwest Airlines (1995) 51 Cal. App. 4th 345, 370.) The employer has the discretion to choose between effective accommodations and may choose the less expensive accommodation or the one which is easier to provide. (Hanson v. Lucky Stores, Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 32 7 DISTRICT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT (1997) 74 Cal. App. 4th 215, 228.) “An employee cannot demand clairvoyance of his employer.” (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 738.) “‘Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer,’ ” ... the employee bears the burden “ ‘to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.’ ” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013.) Here, Plaintiff alleges that her doctor notified the DISTRICT that her TSA position at the Counseling Center was an accommodation for her disability, and after she was consolidated, she was reassigned to SOTA as a classroom teacher - a position that did not accommodate her. Following her departure from SOTA, Plaintiff alleges that the DISTRICT refused to consider her for a TSA position, which was one of the positions that would accommodate her disability. Plaintiff contends she complained that the DISTRICT “was not helping plaintiff find a job that accommodated her disabilities because they would not consider her for a TSA position.” (Complaint at 8:1-4.) The Complaint merely states that Plaintiff did not receive one potential reasonable accommodation: the TSA designation. She does not identify this position as the only position that met her accommodations, but instead alleges that it was “one” position that did. The DISTRICT is not required to provide her with her preferred assignment if other positions may accommodate her disability. Further, Plaintiff pleads no specific facts as to what accommodations she required, or why the TSA position provided those accommodations. The Complaint simply states that she was not given a TSA position, which would be an accommodation, but she does not state that such a position was available. The Complaint does not put the DISTRICT on notice regarding what accommodations should have been provided to reasonably accommodate her disability. Rather, it alleges that she did not get her first choice of accommodation, which is insufficient to state a claim for failure to reasonably accommodate. D. Plaintiff Fails to Plead a Statutory Basis for Her Claim of Negligent Failure to Prevent Harassment, Discrimination or Retaliation Under the Government Tort Claims Act, all governmental tort liability is based on statute. (Lopez, 40 Cal.3d at795.) “Public entity tort liability is exclusively statutory.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868.) In Hoff v. Vacaville Unified School District, the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 32 8 DISTRICT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT Supreme Court held: “Under the California Tort Claims Act, a public entity is not liable for injury arising from an act or omission except as provided by statute. Thus, in California, all government tort liability must be based on statute.” (Hoff v. Vacaville Unified School District (1998) 19 Cal.4th 925, 932, internal citations omitted.) Absent a statutory basis for bringing the cause of action, Plaintiff cannot state a claim for negligent failure to prevent harassment, discrimination, or retaliation. Just as in so-called Tameny actions - causes of action for “wrongful termination” - Government Code Section 815 bars such claims against public entities, stating that “except as otherwise provided by statute … [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Govt. Code §815(a).) Because Tameny actions are based on common law, “section 815 bars Tameny actions against public entities.” (Miklosy, 44 Cal.4th at 900; citing Palmer v. Regents of University of California (2003) 107 Cal.App.4th 899, 909 [“classic Tameny cause of action’ is a common law, judicially created tort ... and not authorized by statute, it is not properly asserted against [a public entity defendant”].) Government Code Section 815 bars actions which are not based on statutory law. Plaintiff asserts a common law claim which lacks any statutory basis. As such, the DISTRICT is immune from direct liability for common law torts such as negligent failure to prevent discrimination or retaliation. E. Plaintiff Fails to Plead Sufficient Facts to Support a Claim that Her Right to Medical Privacy Was Violated, as the Single Alleged Email Does Not Constitute an Improper Inquiry Under FEHA Government Code Section 12940(f)(1) specifies that it is illegal for an employer, among other things, “... to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.” The Complaint alleges that the DISTRICT violated Plaintiff’s right to privacy “by, among other things: inquiring into the nature or severity of her medical condition and/or disability; and wrongfully requesting a medical inquiry of Plaintiff when medical records already substantiated her medical condition and already outlined the necessary reasonable accommodations.” (Complaint 12:1-4.) However, the Complaint sets forth no facts showing that the DISTRICT violated this subsection of FEHA. Rather, it alleges only that Ms. Noto emailed Plaintiff stating that someone from DISTRICT HR would be reaching out to her about her “medical needs.” 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 32 9 DISTRICT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT Further, under FEHA, an employer is permitted to inquire into the employee’s ability to perform job-related functions in response to an employee’s request for a reasonable accommodation. (Govt. Code, §12940(f)(2).) An inquiry is “job related” if it is “tailored to assess the employee's ability to carry out the essential functions of the job....” (Kao v. University of San Francisco (2014) 229 Cal.App.4th 437, 451.) Under FEHA, employers have a duty to engage in a timely, good faith, interactive process with the employee… to determine effective reasonable accommodations…” (Govt. Code §12940(n).) The alleged email from Ms. Noto alone forms Plaintiff’s basis for this cause of action, but it does not constitute an improper medical inquiry into Plaintiff’s medical condition. The email itself did not make any inquiry regarding Plaintiff’s protected information. Nor is there an allegation that any further inappropriate inquiry was made. There are no facts in the Complaint establishing that the DISTRICT violated Plaintiff’s medical privacy. As pleaded, Ms. Noto’s email does not constitute improper conduct. Therefore, this cause of action cannot survive demurrer. IV. CONCLUSION For the foregoing reasons, the DISTRICT respectfully requests that this Court sustain its demurrer without leave to amend to Plaintiff’s Complaint accordingly. Dated: March 17, 2021 BERTRAND, FOX, ELLIOT, OSMAN & WENZEL By: Eugene B. Elliot Ethan M. Lowry Heather G. Hensley Attorneys for Defendant SAN FRANCISCO UNIFIED SCHOOL DISTRICT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 32 PROOF OF SERVICE PROOF OF SERVICE I, the undersigned, declare that I am employed in the County of San Francisco, California; I am over the age of eighteen years and not a party to the within cause; and my business address is 2749 Hyde Street, San Francisco, California 94109. I am readily familiar with the practice of Bertrand, Fox, Elliot, Osman & Wenzel with respect to the collection and processing of pleadings, discovery documents, motions and all other documents which must be served upon opposing parties or other counsel in litigation. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. On March 17, 2021, I served the following document: DEFENDANT SAN FRANCISCO UNIFIED SCHOOL DISTRICT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF’S COMPLAINT on the following interested parties: Edward M. Anaya Anaya Law 1728 Ocean Ave # 240 San Francisco, California 94112 Email: edward@anayalawsf.com Attorneys for Plaintiff Said service was performed in the following manner: () BY ELECTRONIC MAIL SERVICE (E-Mail): Pursuant to California Rule of Court 2.251(b) requiring parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed March 17, 2021, at San Francisco, California. ____________________________ Renae Gawsawadikul 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 32 PROOF OF SERVICE