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Mayfield v. Trevors Store

United States District Court, Northern District of California


December 6, 2004

CHRISTINA MAYFIELD, PLAINTIFF,
v.
TREVORS STORE, INC., DEFENDANT.

The opinion of the court was delivered by: Patel, J.

MEMORANDUM AND ORDER Re: Defendant's Motion to Dismiss

Plaintiff Christina Mayfield filed this action against her former employer, defendant Trevors Store, Inc. ("Trevors") alleging causes of action related to harassment and discrimination based on pregnancy. Plaintiff alleges that actions and statements by her supervisor and Trevors violated the California Fair Employment and Housing Act ("FEHA"), California Government Code Sections 12900-12996, and common law. Now before the court is defendant's motion to dismiss seven of plaintiff's ten causes of action on the basis of insufficient facts to state a claim, lack of a cognizable legal theory under FEHA, and a statute of limitations bar to her common law claims. Having considered the parties' arguments and submission, and for the reasons set forth below, the court enters the following memorandum and order.

BACKGROUND*fn1

Plaintiff Christina Mayfield is a female who began working as a sales associate at defendant Trevors in September 2001. In April 2002, plaintiff informed her supervisor that she was pregnant. Plaintiff alleges that starting with that conversation and continuing until the termination of her employment, on May 2, 2002, her supervisor and the company subjected her to unlawful treatment based on her pregnancy.

Plaintiff's claims stem from the following factual allegations. When first told of the pregnancy, her supervisor responded, "How can you do this to me? You know I'm supposed to take my vacation in July." From this point forward, Medina had an "abrupt change in behavior," illustrated by Medina's comment that plaintiff's pregnancy "was making it ten times harder on everyone else." Thereafter, plaintiff met with Medina to discuss this change in attitude, a meeting which resulted in Medina claiming to have "written [plaintiff] up" (presumably lodging written criticisms of plaintiff's performance). After this meeting, Medina began assigning plaintiff "large amounts of extra work." Medina also made two statements which plaintiff found offensive. First, when plaintiff arrived at work carrying baby items, Medina saw the items and told plaintiff, "Why are you buying baby stuff? You don't even know what you're having yet-- that's what baby showers are for." Second, upon complaining that she was ill due to exhaustion, Medina responded, "It can't affect you that much. You're not that far along."

At some date after these incidents, plaintiff contacted a Trevors manager in Louisiana, Alan Hammett, "because the harassment was worsening." Believing that Hammett could remedy the situation with Medina, plaintiff informed Hammett of her pregnancy, that she had told Medina of the pregnancy, and that this had led to harassing behavior by Medina. Hammett agreed to address the situation. Subsequent to plaintiff's complaint to Hammett, plaintiff called Medina from home to inform her that she was ill due to the pregnancy and needed to take a sick day. Medina told plaintiff that "she had to come in and ... had no choice in the matter." Following this incident, plaintiff again contacted Hammett and informed him that she was not given leave when she needed it due to her pregnancy-related illness. Hammett did not provide any immediate solution or suggestions.

Finally, on May 2, 2002, Medina told plaintiff that they "needed to have a talk." At this meeting, Medina informed plaintiff that her employment was not "working out." Medina further said, "I just don't feel like we can work together." When plaintiff noted that she had no write-ups in her file, Medina said that she had "tons of write-ups." As these negative performance evaluations were never presented to plaintiff for her signature, as required by company policy, plaintiff alleges that Medina generated them as a pretext for terminating her employment. Medina also told plaintiff during this meeting of her awareness that plaintiff had contacted Hammett and that both he and the owner of Trevors, Don Williams, knew of "everything that was going on." At this meeting on May 2, 2002, Mayfield was terminated from her employment with Trevors.

Plaintiff filed this complaint on April 30, 2003 alleging ten causes of action based on defendant's conduct. Plaintiff's eleven claims are: 1) discrimination based upon pregnancy in violation of FEHA; 2) harassment based upon pregnancy in violation of FEHA; 3) discrimination based upon sex in violation of FEHA; 4) harassment based upon sex in violation of FEHA; 5) retaliation for protesting unlawful conduct in violation of FEHA; 6) failure to accommodate pregnancy; 7) failure to take reasonable steps to prevent harassment and discrimination in violation of FEHA; 8) failure to take appropriate corrective action in violation of FEHA; 9) wrongful termination in violation of public policy; and 10) intentional infliction of emotional distress.

On September 1, 2004, defendant filed this motion to dismiss seven of plaintiff's causes of action on five separate grounds. First, defendant argues that the facts supporting plaintiff's second and fourth claims for harassment based on sex and harassment do not rise to actionable harassment under FEHA. Second, defendant argues that plaintiff fails to allege sufficient facts to support her sixth cause of action for failure to accommodate pregnancy under FEHA. Third, defendant claims that FEHA does not permit separate causes of action against an employer for failure to take reasonable steps to prevent discrimination and harassment and failure to take appropriate corrective action, requiring dismissal of plaintiff's seventh and eighth causes of action. Fourth, defendant alleges that plaintiff's ninth and tenth causes of action, based on tort law, are barred by the applicable statute of limitations. Finally, defendant argues that plaintiff does not allege facts sufficient to state a claim under her tenth cause of action for intentional infliction of emotional distress.

LEGAL STANDARD

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only if "it appears beyond doubt that plaintiff can prove no set of facts in support of her claim which would entitle her to relief." Strother v. Southern Cal. Permanente Medical Group, 79 F.3d 859, 865 (9th Cir.1996). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). Allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). The court need not, however, accept as true allegations that are conclusory, legal conclusions, unwarranted deductions of fact or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001); Clegg v. Cult Awareness Network, 18 F.3d 752, 754- 55 (9th Cir.1994).

DISCUSSION

I. Environmental Harassment

Defendant argues that plaintiff did not adequately plead her second and fourth causes of action for harassment based on sex and harassment based on pregnancy because she cannot establish an essential element of this cause of action, that "the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment." Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590, 609, 262 Cal.Rptr. 842 (1989). Defendant understates the facts alleged here. When plaintiff's allegations are taken as true, she has adequately pled persistent harassment which created a harsh working environment.

FEHA makes it unlawful "[f]or an employer ... because of ... sex ... to harass an employee." Cal. Gov't Code § 12940(j)(1). "[H]arassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy." Cal. Gov't Code § 12940(j)(4)(C). California courts recognize two types of sexual harassment under section 12940(j): 1) quid pro quo harassment and 2) hostile work environment. Kohler v. Inter-tel Tech, 244 F.3d 1167, 1172 (9th Cir.2001). The elements required to establish a claim for environmental harassment based on sex by a supervisor are that the plaintiff is a member of a protected group, plaintiff faced unwelcome harassment based on sex, the harassment was "sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment," and respondeat superior. Fisher, 214 Cal.App.3d at 608, 262 Cal.Rptr. 842.

Plaintiff alleges two causes of action based on section 12940(j). Plaintiff's fourth cause of action alleges "harassment based upon sex in violation of FEHA." Her second cause of action is for "harassment based on pregnancy in violation of FEHA." Defendant argues that plaintiff has not pled sufficient facts to establish the atmosphere of pervasive or severe harassment in her work environment required for both causes of action.

To state a claim for relief under section 12940(j), the harassment "must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Birschtein v. New United Motor Manufacturing, Inc., 92 Cal.App.4th 994, 1002, 112 Cal.Rptr.2d 347 (2001) (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). The plaintiff must meet both an objective and subjective standard that the alleged harassment created a hostile work environment. She "must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended." Lyle v. Warner Brothers Television Productions, 117 Cal.App.4th 1164, 1172, 12 Cal.Rptr.3d 511 (2004) (quoting Fisher, 214 Cal.App.3d at 609-610, 262 Cal.Rptr. 842). The reasonable employee to be considered "is one of the same sex as the complainant." Fisher, 214 Cal.App.3d at 609, n. 7, 262 Cal.Rptr. 842. The conduct that leads to harassment because of sex is conduct that subjects the victim to discriminatory or derogatory language or actions because of her sex. Herberg v. California Institute of the Arts, 101 Cal.App.4th 142, 152 at n. 9, 124 Cal.Rptr.2d 1 (2002).

A. Harassment Based on Sex

In order to state a claim for relief for harassment, a plaintiff is required to show a " 'continuous manifestation of a [pregnancy]-based animus.' Nothing more is required to state a claim for relief under [section 12940(j) ]." Birschtein, 92 Cal.App.4th at 1002, 112 Cal.Rptr.2d 347 (quoting Accardi v. Superior Court, 17 Cal.App.4th 341, 351, 21 Cal.Rptr.2d 292 (1993). A cause of action for "harassment because of sex" under section 12940(j) includes "harassment based on pregnancy." Taking plaintiff's allegations as true, she has pled facts from which she may prove that she suffered harassment based on her pregnancy. Plaintiff alleges that as soon as she told her supervisor, Medina, that she was pregnant, Medina began making her feel stigmatized due to her pregnancy, remarking "How can you do this to me? You know I'm supposed to take my vacation in July." From this time until her termination, Medina made at least four other remarks regarding plaintiff's pregnancy that plaintiff found offensive. Offensive comments alone may cause an employee's work environment to be sufficiently hostile to constitute actionable harassment if they are pervasive enough to interfere with the reasonable victim's work environment. Birschtein, 92 Cal.App.4th at 1002, 112 Cal.Rptr.2d 347. In addition to offensive comments, plaintiff alleges that Medina wrote negative performance evaluations, assigned her large amounts of extra work, and denied her a sick day. These actions, if made in retaliation for plaintiff's attempt to discuss the situation, may have transformed what were isolated incidents of harassing statements into a continuing course of unlawful conduct. See Birschtein, 92 Cal.App.4th at 1002, 112 Cal.Rptr.2d 347. Furthermore, although the number of incidents may not have been numerous, when considered in light of the short period of time over which they occurred, they heighten in potency. Taken together and taken as true, plaintiff's has alleged a "continuous manifestation of a sex-based animus" due to her employer's reaction to her pregnancy. Id. Plaintiff has thus sufficiently pleaded a cause of action for harassment based on sex.

B. Harassment Based on Pregnancy

Under California law, harassment based on pregnancy is included within a cause of action for harassment based on sex. Cal. Gov't Code § 12940(j). Indeed, all of plaintiff's allegations relate to actions taken against her due to her pregnancy, which are included within her claim for harassment based on sex. As the statute and case law do not appear to recognize a separate cause of action for harassment based on pregnancy, her second cause of action is deemed subsumed in her fourth cause of action and the second is dismissed as surplusage.

II. Failure to Accommodate Pregnancy

Plaintiff contends that two statutes relate to an employer's duty to accommodate the disabilities incident to pregnancy: California Government Code Sections 12945 and 12940. "Section 12945 details specific employment practices that constitute pregnancy discrimination under FEHA." Spaziano v. Lucky Stores, Inc., 69 Cal.App.4th 106, 110, 81 Cal.Rptr.2d 378 (1999). Section 12945(c)(1) provides, in part, that it is an unlawful employment practice for any employer "to refuse to provide reasonable accommodation for any employee for conditions related to pregnancy, child birth, or related conditions, if she so requests, with the advice of her healthcare provider." Section 12940(m) applies more broadly to any disabled individual and makes it unlawful for an employer "to fail to make reasonable accommodation for the known physical ... disability of an ... employee."

A. California Government Code Section 12945(c)(1)

To state a claim for failure to accommodate a pregnancy under section 12945(c)(1), plaintiff must show that an employer (1) refused a reasonable accommodation (2) for a pregnancy-related condition (3) requested by a pregnant employee (3) with the advice of her health care provider. Cal. Gov't Code § 12945(c)(1). Defendant argues that plaintiff never requested an accommodation on the advice of her health care provider. Plaintiff alleges that she called and asked for a day off because she was not feeling well due to her pregnancy. This request may have constituted a request for an accommodation as required by statute. However, plaintiff alleges no facts to show that her request was based on the advice of her health care provider. Therefore, the express requirements of section 12945(c)(1) are not met.

The requirement that a request for accommodation be based on the advice of a health care provider was expressly added to the legislation enacting section 12945(c)(1). 1999 CA A.B. 1670 (August 25, 1999 version). The requirement is also repeated by Fair Employment and Housing Commission ("FEHC") implementing regulations as the means for an employee to present a bona fide request for accommodation. See CCR tit. 2, § 7291.5(a)(9) [title 2 of California Code of Regulations hereinafter cited as 2 CCR] ("A woman is disabled by pregnancy if, in the opinion of her health care provider, she is unable because of pregnancy to work at all or is unable to perform any one or more of the essential functions of her job or to perform these functions without undue risk to herself, the successful completion of her pregnancy, or to other persons.") (emphasis added). See also; Allen v. Pac. Bell, 348 F.3d 1113, 1115 (9th Cir.2003) (holding employer had no duty to determine an appropriate accommodation once it had requested additional medical evidence, until that information was provided). Here, plaintiff has not alleged that her request to stay home from work was based on the opinion of her health care provider. Therefore, she does not state a claim under section 12945(c)(1).

B. California Government Code Section 12940(m)

Plaintiff's cause of action for failure to make a reasonable accommodation also fails under section 12940(m). To establish a prima facie case of failure to accommodate a physical disability under section 12940(m), plaintiff must first demonstrate that her pregnancy conditions constituted a physical disability within the meaning of the statute. Allen, 348 F.3d at 1114.

Plaintiff asserts that "morning sickness qualifies as a temporary disability for which she may seek a reasonable accommodation pursuant to 12940" relying on the FEHC regulations 7291.5(a)(9) and 7291.2(g). Plaintiff's reliance on these FEHC regulations is misplaced. Regulation 7291.2(g) states that a woman is "considered to be 'disabled by pregnancy' if she is suffering from severe 'morning sickness'." Plaintiff relies on this definition's application to regulation 7291.5(a)(9) which describes discrimination in employment arising from an employer's failure to accommodate an employee "who is temporarily disabled by pregnancy to the same extent that other temporarily disabled employees are accommodated" under the employer's policies. 2 CCR § 7291.5(a)(9). Although plaintiff relies on the requirement for an accommodation in this regulation, plaintiff makes no allegations that defendant violated that regulation. The regulation directly reflects the unlawful practice under section 12945(b)(1) of refusing "to allow a female employee affected by pregnancy ... [t]o receive the same benefits or privileges of employment granted by that employer to other persons not so affected, including [the ability] to take ... sick leave." Therefore, the definition of "disabled by pregnancy" in regulation 7291.2(g) applies to a refusal to accommodate a pregnancy as described in section 12945 and does not describe what constitutes a physical disability under section 12940(m). See also 2 CCR § 7291.5 (omitting any citation to Cal. Gov't Code § 12945(m) as authority); Enrolled Bill Report, Dept. Indus. Rel., AB 1960 (Sept. 14, 1978) (explaining section 12945 as providing separate protections for pregnant women to avoid problems with court interpretations of broadly applicable discrimination laws, such as section 12940).

Instead, plaintiff must allege facts that meet the required elements for showing that she suffers from a physical disability protected by section 12940(m). Brundage v. Hahn, 57 Cal.App.4th 228, 236, 66 Cal.Rptr.2d 830 (1997). A physical disability is a "physiological condition" that limits a "major life activity." Cal. Gov't Code § 12926(k)(1)(B). Plaintiff fails to state any facts to show that her pregnancy constitutes a physical disability under these standards. She does not allege which physiological functions were impaired by her pregnancy and which major life activities were thus impaired. See, e.g., Parker v. Albertson's, Inc., 325 F.Supp.2d 1239, 1250 (D.Utah 2004) (plaintiff did not allege sufficient facts in her ADA claim to show that her high risk pregnancy posed a limitation on any major life activity). See also Allen, 348 F.3d at 1114 n. 1 ("California relies on ADA precedents to interpret analogous provisions of the state's Fair Employment and Housing Act."). Although plaintiff may be able to show that she was a qualified employee who deserved accommodation under section 12940(m), she fails to do so in the allegations in her complaint. Her sixth cause of action for failure to accommodate pregnancy must therefore be dismissed.

III. Failure to Take Reasonable Steps to Prevent Discrimination and Harassment and Failure to Take Appropriate Corrective Action

Defendant contends that California does not recognize independent causes of action for an employer's failure to take reasonable steps to prevent discrimination and harassment or to take appropriate corrective action to remedy ongoing harassment or discrimination, under California Government Code Section 12940. The court considers these arguments in turn.

A. Failure to Take Reasonable Steps Under FEHA to Prevent Discrimination and Harassment

Plaintiff's seventh cause of action prays for relief for her employer's "failure to take reasonable steps to prevent discrimination and harassment from occurring in violation of FEHA" under section 12900, et seq. FEHA makes it unlawful "[f]or an employer ... to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." Cal. Gov't Code § 12940(k) (formerly § 12940(i) prior to 2000 amendment).

The California Supreme Court has stated that FEHA "makes it a separate unlawful employment practice" for an employer to violate section 12940(k). State Dept. of Health Services v. Superior Court, 31 Cal.4th 1026, 6 Cal.Rptr.3d 441, 79 P.3d 556 (2003). Numerous other California courts have recognized a separate cause of action against an employer for failure to investigate or take reasonable steps to prevent harassment or discrimination under section 12940(k) and former section 12940(i). See, e.g., Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir.2003) (holding the district court did not abuse its discretion in requiring a finding of actual discrimination before a violation of section 12940(k) becomes actionable) (citing Trujillo v. North County Transit Dist., 63 Cal.App.4th 280, 283-84, 73 Cal.Rptr.2d 596 (1998)); Northrop Grumman Corp. v. Workers' Comp. Appeals Bd., 103 Cal.App.4th 1021, 1035, 127 Cal.Rptr.2d 285 (2002) ("Prompt investigation of a discrimination claim is a necessary step by which an employer meets its obligation [under section 12940(k) ]"); Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128, 1160, 74 Cal.Rptr.2d 510 (1998) (noting existence of a separate cause of action under 12940(i) which may have become moot when defendant stipulated to liability under another charge); Doe v. Capital Cities, 50 Cal.App.4th 1038, 1054, 58 Cal.Rptr.2d 122 (1996) (sustaining demurrer of defendant for violation of 12940(i) for failure to allege sufficient facts); Jelincic v. Xerox Corp., 2004 U.S. Dist. LEXIS 20523 (N.D.Cal.2004) (Chen, M.J.) (dismissing claim for failure to prevent harassment with leave to amend); Hill v. National Steel & Shipbuilding Co., 1998 U.S. Dist. LEXIS 13904, at *9-10 (S.D.Cal.1998) (denying motion to dismiss section 12940(i) claim).

Defendant argues in its reply that Trujillo "does not provide for a right of action in a tort claim in absence of a showing that the plaintiff has, in fact, been the victim of discrimination." Defendant is correct that Trujillo and Tritchler require findings of actual discrimination or harassment before a plaintiff has a successful claim for failure to take reasonable steps to prevent under section 12940(k). Tritchler, 358 F.3d at 1155; Trujillo, 63 Cal.App.4th at 284, 73 Cal.Rptr.2d 596. However, this argument is premature. Plaintiff will have surviving discrimination and harassment claims after this 12(b)(6) motion (indeed defendant has not moved to dismiss the discrimination causes of action), and plaintiff has yet to prove or fail to prove these claims.

As a cause of action under section 12940(k) is recognized under California law, plaintiff has sufficiently pled this count.

B. Failure to Take Appropriate Corrective Action

Defendant also contends that no separate cause of action exists for an employer's failure to take appropriate corrective action. The only statute inquiring into the corrective actions taken by employers is section 12940(j)(1): "It shall be an unlawful employment practice, ... for an employer ... because of ... physical disability, [or] sex ... to harass an employee. Harassment of an employee ... by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action."

"[S]ubsection (j)(1) of [section] 12940 imposes liability on employers for damages incurred by an employee as a result of sexual harassment by employees." Kohler, 244 F.3d at 1172. The requirement that an employer takes appropriate corrective action does not inject a new cause of action into the statute. Rather, the legislature imposed the requirement to provide a standard for employer liability for harassment of an employee by non-supervisory employees. State Dept. of Health Services, 31 Cal.4th at 1041, 6 Cal.Rptr.3d 441, 79 P.3d 556 ("The employer is liable for harassment by a nonsupervisory employee only if the employer ... failed to take immediate and appropriate corrective action."). Indeed, no court has recognized a separate cause of action for an employer's failure to take remedial action under section 12940(j). Further, courts need not recognize such a separate cause of action because the goal is achieved explicitly under section 12940(k). As no separate cause of action for failure to take corrective action exists under 12940(j), plaintiff's eighth cause of action is dismissed.

IV. Statute of Limitation Bars

On January 1, 2003, California Code of Civil Procedure Section 335.1 became effective, extending the statute of limitations for personal injury actions from one year under section 340(3) to two years. Defendant argues a one year statute of limitations applies because plaintiff's claims accrued under section 340(3). Defendant argues that granting a two year limitations period would amount to retroactive application of section 335.1. See Krusesky v. Baugh, 138 Cal.App.3d 562, 566, 188 Cal.Rptr. 57 (1982) ("[A] statute is presumed to be prospective only and will not be applied retroactively unless such intention clearly appears in the language of the statute itself."). However, application of the two year period to plaintiff's claims would not constitute a retroactive application of section 335.1. In California, legislation extending the statute of limitations for an action not already barred has prospective effect. Mudd v. McColgan, 30 Cal.2d 463, 468, 183 P.2d 10 (1947) ("retroactive operation of a limitation statute is such as would revive matters that had already been barred by the lapse of time."). This principle is still the controlling law in California today. See, e.g., Sanchez v. Workers' Comp. Appeals Bd., 217 Cal.App.3d 346, 358, 266 Cal.Rptr. 21 (1990); Gallo v. Superior Court, 200 Cal.App.3d 1375, 1378, 246 Cal.Rptr. 587 (1988); Kiss v. City of Santa Clara, 2004 U.S. Dist. LEXIS 19470, at 6 (N.D.Cal. Sep. 13, 2004) (Whyte, J.); 3 Witkin Cal. Proc. 4th (1997) Actions § 431 (2004).*fn2

In this case, the plaintiff's cause of action accrued in May 2002, when her employment was allegedly terminated. Under the statute of limitations in effect in 2002, plaintiff's cause of action would be time barred as of May 2003. However, section 335.1 went into effect on January 1, 2003. As plaintiff's claims were not yet time barred on that date, the statute extended the applicable limitations period for her claims from one year to two years. The filing of the complaint in April 2004 occurred within two years of May 2002. Therefore, plaintiff's ninth and tenth causes of action are not time barred.

V. Intentional Infliction of Emotional Distress

Pleading a cause of action for intentional infliction of emotional distress requires a plaintiff to allege outrageous conduct by the defendant, intent to cause or reckless disregard of the probability of causing emotional distress, severe emotional suffering, and actual and proximate causation of the emotional distress. See, e.g., Fisher, 214 Cal.App.3d at 617, 262 Cal.Rptr. 842; Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965, 1001, 25 Cal.Rptr.2d 550, 863 P.2d 795 (1993). Under California law, conduct is "extreme and outrageous" when it "exceeds all bounds of decency usually tolerated by a decent society, and is of a nature that is especially calculated to cause, and does cause, mental distress." Id. Outrageous conduct triggering liability is distinguished from "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Fisher, 214 Cal.App.3d at 617, 262 Cal.Rptr. 842.

Defendant argues that plaintiff has failed to plead intentional conduct that is "extreme and outrageous." Def.'s Mot. at 6. This argument overlooks the law that properly pled allegations of harassment based on sex inherently satisfy the outrageous conduct element required for claims of intentional infliction of emotional distress. "Given an employee's fundamental, civil right to a discrimination free work environment (§§ 12920, 12921), by its very nature, sexual harassment in the work place is outrageous conduct as it exceeds all bounds of decency usually tolerated by a decent society." Fisher, 214 Cal.App.3d at 617, 262 Cal.Rptr. 842. While sexual harassment is merely one subset of "harassment based on sex" under the statute, the principle enunciated in Fisher similarly applies to other forms of harassment prohibited in section 12940(j), and indeed other forms of discrimination that affect the "fundamental, civil right to a discrimination free work environment" which is protected by the statute at large.

Plaintiff has properly pled a cause of action under FEHA, namely harassment based on her pregnancy. As discussed in this order, under FEHA, harassment based on pregnancy is a subset of harassment based on sex described in section 12940(j)(4)(C). Applying the rule described above, namely that harassment on the basis of sex constitutes outrageous conduct, plaintiff has satisfied the conduct element of an intentional infliction of emotional distress claim. See Cal. Gov't Code § 12940(j)(1); Fisher, 214 Cal.App.3d at 617, 262 Cal.Rptr. 842.*fn3 Indeed, defendants conceded that if plaintiff adequately pled a cause of action for harassment based on sex, she would satisfy the outrageous behavior element of intentional infliction of emotional distress. Def.'s Reply at 5.

In addition to showing "extreme and outrageous conduct," a plaintiff must show intent, i.e., that the harassing party "engaged in conduct intended to inflict injury, or engaged in conduct with the realization that injury will result." See Potter, 6 Cal.4th at 1001, 25 Cal.Rptr.2d 550, 863 P.2d 795. In relevant part, plaintiff alleges that her supervisor made frequent remarks criticizing plaintiff for her pregnancy, refused a sick day for pregnancy-related illness, adjusted workloads to penalize plaintiff for her pregnancy, and submitted negative performance notes in plaintiff's file in response to her pregnancy. Taken as true, these allegations constitute conduct that was intended to inflict injury on plaintiff by engendering stress over her job security and guilt for her pregnancy. The defendant does not contest the sufficiency of plaintiff's pleading of causation and actual emotional suffering, the remaining elements of a claim for intentional infliction of emotional distress. Given the viability of plaintiff's claim for harassment based on pregnancy, plaintiff's complaint states a cause of action for intentional infliction of emotional distress.

CONCLUSION

For the foregoing reasons, defendant's motion to dismiss is GRANTED with respect to claims two, six, and eight. Defendant's remaining grounds for dismissal are DENIED.

Plaintiff is given leave to amend claim six to allege facts supporting the missing allegations consistent with part IIA of this order. The remainder of claim six is dismissed without leave to amend. Any amended complaint shall be filed within Thirty (30) days of the date of this order and an answer shall be filed within Twenty (20) days of the date of the filing of the amended complaint. The court finds that plaintiff could not cure the remaining dismissed claims by any amendment.

IT IS SO ORDERED.


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