(Super. Ct. No. SCV21883)
The opinion of the court was delivered by: Robie , J.
Seay v. Sierra Com. College Dist. CA3
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This appeal requires us to determine whether plaintiff Della Seay's first amended complaint -- which advances seven claims under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.)*fn1 -- sets forth any properly pled causes of action. Seay appeals the dismissal of her first amended complaint against Sierra Community College District (the district) and several other employees of the district after the trial court sustained defendants' demurrer without leave to amend.*fn2
Seay contends her "FIRST AMENDED COMPLAINT GIVES THE DEFENDANTS AMPLE NOTICE OF THE LEGAL AND FACTUAL CLAIMS MS. SEAY IS ALLEGING." Seay further argues that her complaint "DOES NOT APPEAR TO HAVE ACTUALLY BEEN DISMISSED BY THE LOWER COURT."
We shall reject her contentions and affirm.
FACTUAL AND PROCEDURAL HISTORY
In November 2007, Seay filed a complaint alleging nine causes of action against the district, Leo Chavez, Ron Martinez, Mandy Davis, and Cindy Mariano (collectively referred to as the defendants). Seven of the causes of action in the complaint arose under the FEHA, and two arose under common law. Defendants demurred to all causes of action, contending (among other things) that the complaint failed to state facts supporting a prima facie case of the FEHA violations or common law torts. The trial court sustained the demurrer as to all causes of action with leave to amend. The court ruled that none of the causes of action sets forth facts sufficient to support the granting of legal relief.
In March 2008, Seay filed her first amended complaint against the same defendants. In the amended complaint, Seay alleged that she was "diagnosed with [a] serious medical condition" in July 2005. No other information about Seay's medical condition is given other than that it required her to undergo "back surgery."
Seay returned to work in September 2006, with unspecified "limitations" on her work. Thereafter, the district received updates on Seay's medical condition, including "the date she would return to full-time work without any restrictions." Seay's "doctor cleared her to return to full-time work on December 1, 2006 without any limitations." (Italics added.)
When Seay returned to work on an unspecified date, she was "bounced from one department to the other with no specific department willing to provide her with any accommodations." Seay met with the vice president of human resources, who told her: "'I am not going to touch this one.'" Seay alleges "she was not given any job consistent with the work accommodation which her doctor's note requested." However, her complaint does not identify the accommodations specified in the note or when the note was written.
Seay alleged that the district "had a pattern and practice to provide accommodations to [those] who needed it," and to this end refers to the accommodations received by Araceli Ruiz. Although the complaint notes that Ruiz was a 25-year-old Hispanic woman who had back surgery, it fails to give any information on whether Ruiz and Seay had similar disabilities or what sort of accommodations Ruiz received from the district.
Although Seay "continued to perform satisfactorily while working" for the district, she alleges that defendants "subjected [her] to an increased level of harassment and retaliation which included . . . refusal to afford [her] some reasonable accommodation for her back surgery [and] refusal . . . to give [Seay] her old job back . . . ." As part of the retaliation, Seay alleges that she was placed on "a 39-month reemployment list[*fn3 ] when her doctor had already cleared her to return to full-time work without limitation [which was] tantamount to constructive discharge."
Seay alleged in January 2006, she was "called into a meeting" where her supervisor "called [her] names" and "stated several times that she was disconnected." However, her complaint acknowledges: "It must be noted that at that time, [Seay] was heavily medicated following her back surgery."
Seay claims that she was told to schedule her medical appointments outside work hours, a requirement imposed on no other employee "of other races who had medical or physical needs."
Seay also alleges that her supervisor would speak to her in a "demeaning and embarrassing voice" on "many occasions." Seay claims that she was monitored about her "coming and going when [her supervisor] did not have someone watching the other minority employees." Her supervisor also "derided [her] regarding her medical situation and how her work restriction was a problem for the unit."
Finally, Seay alleges that the loss of an employee in her unit forced her to take on that employee's workload "on top of [Seay's] own regular workload inspite [sic] of the doctor's work and weight restriction request." She alleges that this workload was "very difficult for [her] to cope with during her compromised physical, medical and emotional condition."
Based on these allegations, the amended complaint set forth causes of action arising under federal law*fn4 as well as the same seven causes of action under the FEHA asserted in the original complaint.
In November 2008, defendants filed a motion to strike and a demurrer to Seay's first amended complaint. The trial court sustained the demurrer without leave to amend.
The trial court explained: "With respect to the individual defendants, they cannot be held liable for discrimination or retaliation. Reno v. Baird (1998) 18 C4th 640, 645-646; Jones v. Lodge at Torrey Pines Partnership (2008) 42 C4th 1158, 1173. . . . With respect to the harassment cause of action, Plaintiff has failed to allege any facts showing that the harassment was 'severe' or 'pervasive' such that her conditions of employment changed. Additionally, Plaintiff has failed to allege the most basic facts in her complaint - what her disability or medical condition was (1st and 2d causes of action); what the essential duties of her job were (7th cause of action); what accommodations she requested or needed in order to perform the essential duties of her job (7th cause of action); that she suffered any adverse employment action at all (1st, 2d, 3d, 4th, 5th, and 7th causes of action); when such adverse action occurred (if it did) (1st, 2d, 3d, 4th, 5th, and 7th causes of action); what protected activity Plaintiff was engaged in which resulted in retaliation (5th cause of action); that her age or race was a determining factor in any adverse employment action (3d and 4th causes of action); or what Plaintiff's age is so that it can be determined if she is within the protected class (4th cause of action). As Plaintiff has already been given one opportunity to amend her complaint to correct these pleading deficiencies, failed to do so in her first amended complaint, and has not shown that she could correct these deficiencies if leave was granted, the court declines to grant further leave to amend."
The trial court denied defendants' motion to strike as moot and entered a judgment of dismissal from which Seay appeals.
"On appeal from a dismissal entered after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the petition states a cause of action as a matter of law. [Citations.] We give the petition a reasonable interpretation, reading it as a whole and viewing its parts in context. [Citations.] We deem to be true all material facts that were properly pled. [Citation.] We must also accept as true those facts that may be implied or inferred from those expressly alleged. [Citation.] We may also consider matters that may be judicially noticed, but do not accept contentions, deductions or conclusions of fact or law. [Citation.]
"If the petitioner has stated a cause of action under any possible legal theory, we will order that the demurrer be overruled. [Citation.] However, if no liability exists as a matter of law, we affirm the trial court's order sustaining the demurrer. [Citation.]" (City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 869-870.) The petitioner has the burden of proving ...