APPEAL from an order of the Superior Court of Los Angeles County, Teresa Sanchez-Gordon, Judge. (Los Angeles County Super. Ct. No. BC464356)
The opinion of the court was delivered by: Manella, J.
CERTIFIED FOR PUBLICATION
In a case of first impression, we are asked to determine whether an employee who has exhausted all permissible leave available under the Pregnancy Disability Leave Law (PDLL), Government Code section 12945,*fn1 may nevertheless state a cause of action under the California Fair Employment and Housing Act (FEHA), section 12900 et seq. The superior court concluded that appellant, disabled by a high-risk pregnancy, failed to state a claim under the FEHA because her employer had granted her the maximum leave provided under the PDLL before terminating her due to her failure to return to work. We conclude the allegations in appellant's first amended complaint (FAC) are sufficient to state a prima facie case under the FEHA for employment discrimination. Accordingly, we reverse the superior court's order dismissing the FAC.
FACTUAL AND PROCEDURAL HISTORY
On July 25, 2011, appellant Ana G. Fuentes Sanchez filed a nine-count FAC against respondent, her former employer Swissport, Inc. She alleged causes of action for (1) discrimination based on pregnancy and pregnancy-related disability, (2) discrimination based on sex, (3) failure to prevent discrimination, (4) failure to accommodate and engage in a timely, good faith interactive process, (5) retaliation, (6) wrongful and tortious discharge, (7) intentional infliction of emotional distress (IIED), (8) unfair business practices under California Business and Professions Code section 17200 et seq., and (9) breach of implied and/or express contract.
Appellant alleged that she was employed by Swissport from August 2007 until July 14, 2009 as a cleaning agent. Around February 27, 2009, she was diagnosed with a high-risk pregnancy, requiring bedrest. After her diagnosis, appellant requested and received a temporary leave of absence from Swissport. Appellant alleged that Swissport had actual knowledge that she was anticipated to deliver her baby on or about October 19, 2009. She also alleged that Swissport knew she needed a leave of absence lasting until she gave birth. Appellant alleged that "very soon after she was scheduled to give birth, she would have returned to work, with the need for only minimal accommodations, if any, in order to perform the essential function[s] of her job." She further alleged that Swissport "afforded her just over 19 weeks of leave, consisting of her accrued vacation time in addition to the time allotted by the California Family Rights Act (CFRA) [sections 12945.1 et seq.] and Pregnancy Disability Leave Law (PDLL) [section 12945], before abruptly terminating her employment on or about July 14, 2009 by and through [Rosalia Castillo]."*fn2 Appellant alleged that she was fired because of her pregnancy, her pregnancy-related disability and/or her requests for accommodations. Appellant also alleged that "at no time, prior to the termination of her employment, did [Swissport] ever contact Plaintiff to engage her in a timely, good faith interactive process in order to identify available accommodations, such as the extended leave of absence she had requested, so that she could remain employed." Finally, she alleged that "the reasonable accommodations necessitated by her pregnancy and pregnancy-related disabilities would not have created an undue hardship upon [Swissport], nor would said accommodations have adversely impacted, in any way, the operation of [its] business."
On September 9, 2011, Swissport filed a demurrer to the FAC, contending that all the causes of action in the FAC derived from the underlying claim that Swissport violated the FEHA by failing to provide additional leave to appellant for her pregnancy-related disability. Swissport asserted that because it had provided appellant with all of the leave mandated by the PDLL and the CFRA, it necessarily had satisfied all of its obligations under the FEHA. Thus, Swissport argued, appellant's FEHA-related claims and the derivative claims, such as the unfair business practices claim, were not viable.
On September 29, 2011, appellant filed an opposition, arguing that she was entitled to reasonable accommodations for her pregnancy-related disability under the FEHA, independent of the leave provisions articulated in the PDLL and the CFRA. Specifically, she contended she was afforded protection by the general anti-discrimination provision of section 12940. She argued that "just because a pregnant employee is unable to perform the essential functions of her job without accommodations upon the exhaustion of her . . . leave, does not preclude her entitlement to protection under [the] FEHA since she may be able to perform her job's essential functions with reasonable accommodations." She further argued that providing additional leave was a reasonable accommodation for a known disability. Appellant also argued that her pregnancy-related disability was "a condition that is -- at the risk of being facetious -- transient in nature," as it would resolve itself after she delivered her baby.
Swissport filed a reply, arguing that "[t]he pregnancy disability statutes and regulations are clear: pregnancy disability leave is capped at four months. Sanchez was permitted all of the pregnancy leave to which she was entitled, and her employment was terminated only when that leave expired and she was not able to return to work."
At the hearing on the demurrer, the superior court observed that "at the time of her termination in July 2009, plaintiff was unable to perform her essential job functions at all. . . . [S]section 1940 subdivision [(a)] does not prohibit an employer from discharging an employee who is unable to perform her essential duties even with accommodation." The court concluded that "[t]he allegations against defendant that defendant discharged plaintiff after her statutorily authorized pregnancy leave expired and that she was unable to return to work is conduct expressly permitted under the Government Code." On October 13, 2011, the superior court sustained the demurrer without leave to amend. An order dismissing the action was entered November 17, 2011. Appellant timely appealed.
Appellant contends the trial court erred in sustaining the demurrer to her FAC.*fn3 For the reasons ...