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Acuna v. San Diego Gas & Electric Co.

California Court of Appeals, Fourth District, First Division

July 18, 2013

ESPERANZA ACUNA, Plaintiff and Appellant,
SAN DIEGO GAS & ELECTRIC CO., Defendant and Respondent.

Filed 7/18/13.

APPEAL from a judgment of the Superior Court of San Diego County No. 37-2009-00101730- CU-WT-CTL, Lisa Foster, Judge. Affirmed in part, and reversed in part.

North County Law Firm and Dena M. Acosta for Plaintiff and Appellant.

Wilson Turner Kosmo, Claudette G. Wilson, Michael S. Kalt and Mary P. Snyder for Defendant and Respondent.


After she was terminated, Esperanza Acuna sued her former employer, San Diego Gas & Electric Co. (SDG&E), asserting claims under the Fair Employment and Housing Act (FEHA) (Gov. Code, [1] § 12900 et seq.), and several nonstatutory claims. The court sustained SDG&E's demurrer on Acuna's first amended complaint without leave to amend. The court found Acuna's FEHA-based claims were barred by the applicable statute of limitations and Acuna failed to sufficiently state a cause of action on her remaining claims.

Acuna appeals. We affirm the judgment on all claims, except for Acuna's causes of action for retaliation under the FEHA and for wrongful termination in violation of public policy based on the retaliation claim. SDG&E did not show these claims were untimely as a matter of law.


The nature of the appellate issues require that we set forth the alleged facts in some detail. Because we are reviewing a judgment after a demurrer, we assume the truth of the properly pleaded factual allegations of Acuna's first amended complaint and the facts implied from those allegations. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

Acuna, who is Hispanic, began working for SDG&E in June 1979. Her work involved "timekeeping" responsibilities, including inputting daily time sheets into the computer system. Acuna consistently received positive performance appraisals. Her supervisors and coworkers praised her dedication and commitment to work.

In 2002, Jim Valentine became Acuna's supervisor. Shortly after, Valentine began making numerous "condescending" comments to Acuna about her Hispanic background, and told employees "that he did not want employees speaking Spanish around him." He also allegedly made numerous unjustified criticisms of Acuna's work.

In August 2004, Acuna's repetitive motion work "resulted in carpel tunnel to her right wrist." During an unspecified time, she was on medical leave. After treatment and ergonomic modifications were made to her work station, Acuna returned to work. After her return, Valentine "continuously and falsely" accused Acuna of making data entry errors. Valentine consistently treated Acuna differently from other employees, especially with issues of overtime and lunch periods.

In a February 2005 written evaluation, Valentine "retaliated against [Acuna] by misrepresenting [Acuna's] work performance...." Valentine's comments were false and adversely affected her pay increases. Valentine also violated Acuna's right to take training classes and required that she bring her lunch so that she could eat and work at her desk.

In April 2005, Acuna suffered an emotional breakdown allegedly caused by Valentine's conduct towards her. She was placed on disability leave for an industrial stress claim. She lodged an internal discrimination and harassment claim with SDG&E's human resources department. SDG&E told Acuna an investigation would be initiated which would take about six weeks.

Three months later, on June 22, 2005, Acuna returned to work and was immediately required to meet with Valentine and two other supervisors. At the meeting, Acuna was falsely accused of "errors and overtime issues" (apparently concerning her personal timekeeping record) without any supporting evidence. During the next week Acuna was "placed under constant scrutiny, " and her job duties changed. Acuna "believed that [SDG&E] was retaliating against her for reporting discrimination and harassment by... Valentine and filing a workers' compensation claim."

About one week after she returned, on June 28, 2005, Acuna's treating physician again placed Acuna on disability based on the exacerbation of her stress issues. While on leave, on July 11, 2005, Acuna sent an email to the human resources department regarding the status of the internal investigation of her discrimination and harassment claims against Valentine. The next day, Acuna received a response that there were two separate investigations being conducted, one involving Acuna's discrimination and harassment claims, and one involving Valentine's allegations against Acuna for timekeeping irregularities. Acuna was told her required contact in human resources was Valentine's wife.

After SDG&E challenged Acuna's workers' compensation stress claim, Acuna was evaluated by a Qualified Medical Evaluator, who prepared an October 5, 2005 report concluding Acuna " 'has suffered a temporary and total industrial psychological disability as a result of an injury (stress) related to the harassment and disparagement of her by her immediate manager, Mr. Valentine.' " The evaluator opined that the only necessary work restriction was to place Acuna in a different department under a different manager. After SDG&E requested a supplemental report, the evaluator provided an additional report in January 2006, in which he concluded that Acuna's " 'major source of psychological stress and her distress (more than 75%) arises from the negative treatment, amounting to harassment, by her current supervisor, Jim Valentine.' "

At that point, Acuna retained counsel. Acuna alleges she did so because she "received no response from [SDG&E] concerning her internal investigation or efforts to place her back to work in a department under a different supervisor...."

Several months later, on March 16, 2006, Acuna filed an administrative complaint with the California Department of Fair Employment and Housing (DFEH). In the complaint, Acuna alleged she was "discriminated and harassed because I was an Hispanic female. Harassment increased after I filed a Worker's Compensation claim and then I was retaliated against for protesting." She requested an immediate right-to-sue letter.

About 10 days later, on March 27, the DFEH issued a right-to-sue letter, stating that the civil action must be filed within one year of the letter. However, four months later, in July 2006, Acuna's counsel and SDG&E's counsel began "a series of communications... concerning [SDG&E's] internal investigation of [Acuna's] complaints." In November 2006, Acuna's treating physician released her to return to work, but not under Valentine's supervision. However, SDG&E refused to allow Acuna to return to work, stating it needed additional clarification from Acuna's physician.

On January 5, 2007, SDG&E's counsel sent correspondence to Acuna's counsel stating he was arranging witness interviews and he expected to be in a position to discuss Acuna's claims in two to three weeks. However, SDG&E's counsel never sent any further communications regarding SDG&E's investigation.

On February 23, 2007, Acuna filed her second DFEH administrative complaint. In the complaint, Acuna alleged SDG&E engaged in disability discrimination and failed to provide reasonable accommodation for her disability. She stated that on "November 16, 2006, I provided a medical note that I could return to work with restrictions of returning to a different work site. To this date I have not been reinstated." She claimed she had applied for vacant positions that would satisfy her doctor's restrictions, but SDG&E failed to "engage [in] an interactive process" to accommodate her disability.

Immediately thereafter, SDG&E informed Acuna that it was "working on providing [Acuna] a job under the work restrictions outlined by her physician and that she would need to go back to see the qualified medical examiner before [SDG&E] could bring her back to work." SDG&E also told Acuna that John Garcia would be her human resources contact to assist her in finding a job at SDG&E. Acuna immediately began researching and applying for open SDG&E job listings.

In April 2007, another medical evaluator opined that Acuna could return to work and recommended a transfer so Acuna would have no meaningful contact with Valentine. SDG&E disputed this recommendation, and the parties agreed to Dr. Dominick Addario as an agreed medical examiner to resolve the medical dispute.

On December 14, 2007, Dr. Addario provided a report in which he opined that Acuna suffered a work-related injury predominantly caused by Acuna's exposure to harassment at work from her supervisor, Valentine. Dr. Addario recommended Acuna be accommodated in a position with a different supervisor.

From December 2007 through June 2008, SDG&E "refused and continued to refuse to consider [Acuna] for any position or job opening for which she was qualified...." Additionally, the SDG&E employee assigned to help her with the disability accommodation (Garcia) failed to make any reasonable efforts to assist Acuna or respond to her calls or emails.[2]

During this same period, on February 19, 2008, the DFEH issued a second right-to-sue notice based on Acuna's February 2007 DFEH complaint. The DFEH notified Acuna that a civil action must be filed within one year of this right-to-sue notice.

Two months later, in April 2008, Acuna "became concerned about the sincerity of [SDG&E's] efforts to help her find a position after she was rejected for two positions based on Mr. Valentine's previous characterization of her work performance." In response to her concerns, Garcia assured her that he was "continuing to assist in her job search."

In about June 2008, Acuna learned that Valentine was transferred to a different location and department. Acuna thus requested to return to work at her former position, and she was offered and accepted the position. At the same time, SDG&E notified Acuna that it was resuming the investigation into the timekeeping allegations made against her by Valentine in 2005. She was told to report to manager Alan Dulgeroff to resume her former position.

However, when Acuna met with Dulgeroff and a senior human resources manager on June 16, 2008, she was "threatened" with termination based on the "revived 2005 timekeeping allegations made by... Valentine." She was told that she would be fired unless she signed a release of all claims against SDG&E. At the conclusion of the meeting, Acuna was handed a severance and release agreement, and told she would be terminated if she refused to sign it.

About one month later, on July 11, 2008, SDG&E sent Acuna a notice of termination effective that date. In the letter, SDG&E said Acuna was being terminated because she had engaged in wrongful conduct in 2004 and 2005 relating to reporting hours worked and overtime. Acuna denied these allegations and alleged that SDG&E "fabricated [these] issues in retaliation for protesting Defendant's unlawful conduct."

Four months later, on October 23, 2008, Acuna filed a third administrative complaint with the DFEH, alleging discrimination, harassment, and retaliation. The administrative complaint described the alleged discrimination as follows: "Previous protests and reports of discrimination, harassment and retaliation by [Valentine]. Increased harassment after filing work comp ...

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