60 Cal.App.5th 1092
Cal. Ct. App.2021Background
- In 2015 LAUSD upgraded Wi‑Fi at Millikan Middle School; Laurie Brown, a teacher, soon experienced headaches, nausea, chronic pain and other symptoms she attributes to electromagnetic hypersensitivity (EHS).
- Brown requested accommodations; LAUSD disconnected access points in her classroom and offered options for neutral EMF testing.
- Brown sought an independent consultant (not LAUSD’s retained URS); LAUSD ultimately relied on URS’s prior testing, declined the independent consultant and did not implement further accommodations she requested.
- Brown took medical leave (exhausting paid time off), appealed LAUSD’s denial, and sued under FEHA for: disability discrimination, failure to accommodate, failure to engage in the interactive process, retaliation, and failure to prevent discrimination/retaliation.
- The trial court sustained LAUSD’s demurrer to the FAC without leave to amend and entered dismissal; on appeal the Court of Appeal reversed only as to the failure‑to‑accommodate claim and affirmed dismissal of the remaining claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EHS qualifies as a "physical disability" under FEHA | Brown: alleged EHS symptoms limit major life activity (working) and thus constitute a physical disability under FEHA | LAUSD: EHS is not a recognized disability (relied on ADA federal cases) | Held: FEHA is broader than ADA; Brown sufficiently pleaded a physical disability under FEHA |
| Whether Brown pleaded actionable discrimination (adverse employment action and discriminatory intent) | Brown: LAUSD’s refusal to honor/extend accommodations and its course of conduct materially altered her employment terms | LAUSD: No adverse employment action—Brown voluntarily went on leave; LAUSD offered accommodations and engaged in interactive process | Held: Allegations do not show adverse employment action or discriminatory motive; discrimination claim fails |
| Whether Brown pleaded retaliation in violation of FEHA | Brown: protected complaints and subsequent LAUSD conduct amount to retaliation | LAUSD: No retaliatory animus or adverse action tied to protected activity | Held: FAC lacks facts showing retaliatory animus or an adverse action caused by protected activity; retaliation claim fails |
| Whether Brown pleaded failure to accommodate and/or failure to engage in the interactive process | Brown: LAUSD agreed to further neutral testing and other measures but reneged, and failed to provide reasonable accommodations | LAUSD: Repeated efforts made; offered options including URS testing; some symptoms occurred off campus so LAUSD could not fix them | Held: Failure‑to‑accommodate was adequately pled (reversed on this cause); failure‑to‑engage claim insufficient because allegations describe a failure to honor an agreed accommodation (Albertsons controls) |
Key Cases Cited
- Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028 (2005) (defines adverse employment action; "terms, conditions, or privileges" of employment analyzed under totality of circumstances)
- Jensen v. Wells Fargo Bank, 85 Cal.App.4th 245 (2000) (elements of failure to accommodate claim)
- Spitzer v. Good Guys, Inc., 80 Cal.App.4th 1376 (2000) (interactive exchange between employer and employee to identify accommodations)
- Bagatti v. Department of Rehabilitation, 97 Cal.App.4th 344 (2002) (no need to plead lack of undue hardship at the complaint stage)
- A.M. v. Albertsons, LLC, 178 Cal.App.4th 455 (2009) (distinguishes failure to accommodate from failure to engage in interactive process once an accommodation is granted)
- Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (2012) (trial court gatekeeping for expert testimony)
- Mamou v. Trendwest Resorts, Inc., 165 Cal.App.4th 686 (2008) (elements of FEHA retaliation claim)
- Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493 (1970) (pleading standard: allegations need only show plaintiff may be entitled to some relief)
- Hirmiz v. New Harrison Hotel Corp., 865 F.3d 475 (7th Cir. 2017) (federal ADA decision finding EHS not a recognized disability; discussed but held inapposite to FEHA analysis)