SCOTT ROPE, Plaintiff and Appellant, v. AUTO-CHLOR SYSTEM OF WASHINGTON, INC., Defendant and Respondent.
No. B242003
Second Dist., Div. One
Oct. 16, 2013
220 Cal.App.4th 635
Kesluk & Silverstein, Douglas N. Silverstein and Lauren J. Morrison for Plaintiff and Appellant.
Horowitz & Clayton, Craig A. Horowitz and Wayne D. Clayton for Defendant and Respondent.
JOHNSON, J.—When he was hired in September 2010, plaintiff Scott Rope informed his employer, defendant Auto-Chlor System of Washington, Inc. (Auto-Chlor), he planned in February 2011 to donate a kidney to his physically disabled sister and requested that he be given leave to do so. Rope later requested that the leave be extended and paid under the then newly enacted Michelle Maykin Memorial Donation Protection Act (DPA),
Rope appeals from the judgment of dismissal entered after the trial court sustained general demurrers to his first and second amended complaints without leave to amend. (
FACTUAL ALLEGATIONS
Our factual recitation is drawn from the allegations in Rope‘s first and second amended complaints. For purposes of review, we assume the truth of all allegations.
On September 7, 2010, Rope was hired by Auto-Chlor as a branch manager. At the time he was hired Rope informed Auto-Chlor that he was scheduled to be an organ donor in February 2011 for his sister who had suffered kidney failure and required a kidney transplant.
From October through December 2010, Rope informed Auto-Chlor‘s human resources department and managers that he would need to take leave to recover after he donated a kidney to his sister. During his employment, Auto-Chlor was aware Rope‘s plan to donate a kidney remained unchanged
In November 2010, Rope became aware that the DPA would go into effect on January 1, 2011. Under the DPA, certain private sector employees are entitled to 30 days of paid leave for organ donation.1 Rope requested 30 days’ paid leave for the organ donation he planned to make in February 2011, as his doctor had informed him he would likely need that amount of time to recover from the planned major surgery and organ loss.
Rope spoke with Auto-Chlor‘s regional manager Michael Pruss, requested that he be permitted to take 30 days of paid leave for the organ donation and explained the leave was a medical necessity in order for him to recover from surgery. Rope explained to Pruss that the DPA provided for the 30 days’ paid leave he required. Pruss promised to “look into it.” Rope repeatedly requested that Auto-Chlor respond to his request for 30 days’ paid DPA leave; his requests were ignored. Rope complained to Auto-Chlor‘s management that he had a statutory right to take paid leave which no one had approved.
Rope also informed Auto-Chlor that, depending on how well the surgery and recovery went, he might need additional accommodations upon his return including more leave, and promised to inform Auto-Chlor once his doctor decided what additional accommodations, if any, he required. In November 2010, Auto-Chlor‘s human resources department told Rope he could take an unspecified amount of unpaid leave. Auto-Chlor did not respond to Rope‘s requests for paid leave.
From September to December 2010, Rope received satisfactory performance reviews and posed no disciplinary problems. On December 30, 2010, two days before the DPA became effective, Rope‘s employment was terminated purportedly for poor performance. Rope claims the real reason he was fired was Auto-Chlor‘s desire to avoid providing him paid leave or to accommodate his anticipated work restrictions. Auto-Chlor knew Rope was associated with his sister, a person with a physical disability and also perceived Rope as a person with a disability because he would need time off work to recover from the transplant operation and would thereafter return to work with restrictions. Rope donated a kidney to his sister as planned in February 2011.
PROCEDURAL HISTORY
In August 2011, Rope initiated this action alleging various
The FAC alleged causes of action for (1) violation of the DPA; (2) retaliation for Rope‘s participation in a protected activity in violation of
Auto-Chlor filed a general demurrer to the FAC. The trial court sustained with leave to amend Auto-Chlor‘s demurrer to the causes of action for wrongful termination in violation of public policy, and FEHA claims for associational discrimination and failure to maintain an environment free of discrimination (the third, fifth and sixth causes of action respectively). The court sustained the demurrer without leave to amend as to the causes of action for violation of the DPA, retaliation for participation in a protected activity, violation of PAGA and retaliation in violation of FEHA (the first, second, fourth and seventh causes of action).
In December 2011, Rope filed the operative second amended complaint (SAC) alleging causes of action for (1) wrongful termination in violation of public policy; (2) associational discrimination in violation of FEHA; (3) discrimination on the basis of physical disability and perceived disability in violation of FEHA; and (4) failure to maintain an environment free of discrimination in violation of FEHA.
Auto-Chlor demurred again. The trial court sustained the demurrer to the SAC without leave to amend and dismissed the action. Rope appeals.
DISCUSSION
Rope contends the trial court erred when it sustained without leave to amend Auto-Chlor‘s demurrer as to four claims in the FAC, and erred again in sustaining without leave to amend Auto-Chlor‘s demurrer to the SAC in its entirety. Rope is partially correct.
1. Legal standard
A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (
2. The trial court did not err in sustaining Auto-Chlor‘s demurrer to the first, second and fourth causes of action in the FAC.
a. Allegations
In the FAC Rope alleged that he was terminated (1) for the pretextual reason of “poor performance” because Auto-Chlor did not want to pay him for leave taken under the DPA, (2) as retaliation for engaging in the protected conduct of requesting paid leave, and (3) for complaining after Auto-Chlor refused to approve DPA leave.
b. Rope failed to state a cause of action under the DPA.
i. Retroactivity
The DPA required private employers with 15 or more employees to grant “[a] leave of absence not exceeding 30 days to an employee who is an organ donor in any one-year period, for the purpose of donating his organ to another person.” (
The principal issue is whether the trial court erred in dismissing various causes of action because Rope‘s allegedly discriminatory or wrongful termination occurred two days before the DPA became effective.
” ‘New statutes are presumed to operate only prospectively absent some clear indication that the Legislature intended otherwise.’ (Elsner v. Uveges (2004) 34 Cal.4th 915, 936 (Elsner).) ” ‘[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic. Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly . . . . For that reason, the “principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal.“’ [Citations.]” (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 475 (McClung).)
“Departure from the presumption of prospectivity is warranted only by clear legislative intent.” (City of San Jose v. International Assn. of Firefighters, Local 230 (2009) 178 Cal.App.4th 408, 420; see Californians for Disability Rights v. Mervyn‘s, LLC (2006) 39 Cal.4th 223, 229-230.) “[I]n the absence of an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.” (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1209 (Evangelatos).) To overcome the strong presumption against retroactivity, the Legislature must show “clear and unavoidable intent to have the statute retroactively impose liability for actions not subject to liability when taken. ‘Requiring clear intent assures that [the legislative body] itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.’ [Citation.]” (McClung, supra, 34 Cal.4th at p. 476.)
In contrast, a statutory amendment that merely clarifies, rather than changes, existing law is deemed not to operate retrospectively, even if applied to actions that predate its enactment, ” ‘because the true meaning of the statute remains the same.’ [Citation.] In that event, personal liability would have existed at the time of the actions, and the amendment would not have
ii. Analysis
The 2010 enactment of the DPA substantively changed, rather than merely clarified, prior law. The DPA changed the legal consequences of a private employer‘s actions that were exempt from liability prior to the act‘s effective date. Before January 2011, no private employer was required to approve an employee‘s request for paid time off in order to make an organ donation. After January 2011 the standard for the imposition of liability changed. Retroactive application of the DPA impermissibly would impose liability for an action that was lawful when taken. Our research revealed no indication that the Legislature intended the DPA to be construed as a clarification rather than a change in the law. Nor has Rope made any showing that the Legislature considered, let alone that it clearly and unequivocally intended by the DPA to impose after-the-fact liability.3 (See Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1141.)
In the FAC Rope alleged that Auto-Chlor violated the DPA “[b]y failing to approve [Rope] taking paid leave pursuant to [that act], and terminating [Rope] for attempting to exercise his rights.” He alleged that his “termination violated . . . California‘s fundamental public policies in favor of the right to object to and refuse to participate in instructions by [Auto-Chlor] to violate California and Federal law,” and that these “adverse employment actions were taken in part or in whole because of [Rope‘s] objections and opposition to, resistance of [Auto-Chlor‘s] actions, as well as [Rope‘s] efforts to exercise their [sic] rights under the [DPA].” Rope conceded that the DPA was not in effect during his employment with Auto-Chlor.
The trial court found that Rope had failed—and could not amend—to allege facts to state a viable claim under the DPA, a statute not in existence at the time of his termination. That determination was correct. As discussed above, the DPA‘s proscription against an adverse employment action may not be applied retroactively unless the statute contains express language of retroactivity, or if another source provides a clear and unavoidable implication that the Legislature intended retroactive application. (Evangelatos, supra, 44 Cal.3d at p. 1209.) There is no language in the DPA or its legislative history reflecting any intent to apply the new statute to conduct occurring
Recognizing that the DPA cannot be applied retroactively, Rope argues that February 2011, the date of his requested leave, should be considered the operative date rather than the date of his termination because public policy in California has supported paid employment leave for organ donors since 2002. But, until enactment of the DPA, public policy required paid leave only in the case of specific public employers. Auto-Chlor was entitled to rely on that limitation. To find otherwise would unreasonably and retrospectively require a defendant to comply with requirements from which it was exempt. (See Elsner, supra, 34 Cal.4th at pp. 926-927; Sequoia Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1480.)4
c. Rope failed to state a Labor Code violation
i. Labor Code Section 1102.5
Rope has not pleaded and cannot plead a viable whistleblower claim because he does not claim either that he reported his suspicions of unlawful
We also reject Rope‘s assertion that liability under
Rope‘s reliance on Lujan v. Minager (2004) 124 Cal.App.4th 1040, is misplaced. Lujan permitted a preemptive retaliation claim under
ii. Labor Code section 98.6
iii. The Private Attorneys General Act of 2004
In PAGA, the Legislature created an enforcement mechanism for aggrieved employees to file representative actions to recover penalties in cases in which there is no private cause of action as an alternative to enforcement by the Labor Commissioner. (See
The trial court sustained Auto-Chlor‘s demurrer to Rope‘s PAGA cause of action without leave to amend on the ground that it is dependent on pleading
d. The demurrer was properly sustained as to the retaliation claim
Rope alleged he suffered retaliation for engaging in the FEHA “protected activities of requesting leave for his sister‘s disability/medical condition.”8 In relevant part, FEHA provides that it is unlawful “[f]or any employer . . . to discharge . . . or otherwise discriminate against any person because the person has opposed any practices forbidden under this part . . . .” (
Protected conduct under
FEHA‘s implementing regulations help clarify what constitutes protected activity. They state: “(a)(1) Opposition to practices prohibited by [FEHA] includes . . . : [¶] (A) Seeking the advice of the Department [of Fair Employment and Housing] or [former Fair Employment and Housing] Commission . . . ; [¶] (B) Assisting or advising any person in seeking the advice
Clearly,
Nevertheless, we find no support in the regulations or case law for the proposition that a mere request—or even repeated requests—for an accommodation, without more, constitutes a protected activity sufficient to support a claim for retaliation in violation of FEHA. On the contrary, case law and FEHA‘s implementing regulations are uniformly premised on the principle that the nature of activities protected by
Further, to constitute retaliation, there must also be evidence the employer knew the employee was engaged in activities in opposition to the employer at the time of the alleged retaliation. (See, e.g., Yanowitz, supra, 36 Cal.4th at p. 1046 [employee‘s unarticulated belief that an employer is engaging in discrimination is insufficient to establish protected conduct if there is no evidence employer knew employee‘s opposition was based upon a reasonable belief that employer was engaging in discrimination].) Rope has not alleged, and does not purport to be able to amend to allege, facts sufficient to satisfy this test.
Rope claims also to have sufficiently pleaded protected activity simply by complaining to Auto-Chlor about its failure to respond to his leave requests. These complaints are insufficient to show Rope “opposed practices” forbidden by FEHA and suffered retaliation as a result. “The interpretation of ‘protected activity’ that [Rope] urges would significantly blur and perhaps obliterate the distinction between an action for failure to accommodate or engage in the interactive process and retaliation.” (Kelley v. Corrections Corp. of America (E.D.Cal. 2010) 750 F.Supp.2d 1132, 1144 [interpreting FEHA].)
Rope asserts that retaliation may be inferred from the timing of his requests for leave and Auto-Chlor‘s refusal to discuss the matter, in relation to the DPA‘s impending effective date. He is correct that in some cases, a close temporal proximity between an employee‘s resistance or opposition to unlawful conduct and an adverse employment action will support an inference that the action was retaliatory. (See Loggins v. Kaiser Permanente Internat. (2007) 151 Cal.App.4th 1102, 1110, fn. 6; Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1235, disapproved on another ground in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173–1174; Villiarimo v. Aloha Island Air, Inc. (9th Cir. 2002) 281 F.3d 1054, 1065.) But, “a close temporal relationship does not change the nature of the employee‘s activity in the first instance. The text of [
3. The SAC adequately states FEHA causes of action for associational discrimination and failure to maintain an environment free from discrimination, and a common law claim for wrongful termination in violation of public policy.
a. Amendments to the pleading
The trial court granted Rope leave to amend the FAC as to three causes of action: wrongful termination in violation of public policy, associational discrimination and failure to maintain a workplace environment free from discrimination. Rope amended these claims and added a new cause of action for discrimination on the basis of actual or perceived disability under FEHA. The court sustained the demurrer to all four causes of action without leave to amend. Auto-Chlor argues the demurrer to the SAC was properly sustained because, among other reasons, Rope failed to obtain leave to add a new FEHA claim and did not exhaust his administrative remedies as to such a claim. We reject these arguments.
Generally, when a court sustains a demurrer with leave, the pleader may amend only the cause of action as to which the demurrer was sustained. (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) But the general rule does not apply if the new cause of action responds to the court‘s reasoning for sustaining the earlier demurrer. (Ibid.) Further, it is error for the trial court to sustain a demurrer if the plaintiff has stated or can state a cause of action under any possible legal theory. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) In his opposition to the demurrer to the FAC, Rope requested leave to amend the FAC to allege new disability discrimination and perceived disability claims. This issue was also discussed at the hearing on the demurrer. The newly pleaded causes of action respond to the trial court‘s concerns in that they provide a statutory predicate for the allegation that Auto-Chlor‘s failure to grant leave was unlawful disability-based discrimination.
As for the assertion that Rope failed to exhaust his administrative remedies, in his amended Department of Fair Employment and Housing (DFEH) form complaint, Rope “checked” boxes for termination, denial of accommodation, failure to prevent discrimination, retaliation, disability discrimination and associational discrimination. The DFEH complaint also alleges that Rope “was discriminated against . . . on account of his association with his sister, who suffered from the [physical disability of kidney failure],” and that he was wrongfully fired “in retaliation for requesting [medical] leave to donate an organ to his sister.”
Auto-Chlor argues Rope failed to exhaust his DFEH remedies because the body of the administrative complaint does not specifically state that Rope claimed disability or perceived disability discrimination. But the administrative complaint does state that Rope planned to donate an organ to his disabled sister, which is the factual basis of his FEHA claim. Further, we view Rope‘s newly pleaded FEHA claims as sufficiently “like or reasonably related” to his other charges to find that Auto-Chlor had notice of Rope‘s FEHA claim, and that he exhausted his administrative remedies. (See Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1615 [FEHA action may include claim that is ” ‘like or reasonably related’ ” to the allegations in plaintiff‘s DFEH charge of discrimination].) If an employer has been put on notice of charges, a technically incomplete DFEH complaint will not preclude an action to pursue those claims. (See Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th 1505, 1511.)
b. Associational, direct and perceived disability discrimination
Rope alleged in his second and third causes of action that Auto-Chlor discriminated against him based on his relationship or association with his physically disabled sister and its perception that he was or would become physically disabled himself as a result of the kidney donation surgery and his anticipated need for postsurgical accommodations. We find that Rope has stated a claim for associational discrimination under FEHA, but reject his other contentions.
i. Associational discrimination
FEHA provides in pertinent part that it is unlawful for “an employer, because of the . . . physical disability . . . of any person, to . . . discharge the person from employment . . . or to discriminate against the person . . . in terms, conditions, or privileges of employment.” (
To state a FEHA claim, a plaintiff need only “show that: he or she was a member of a protected class; was qualified for the position he sought; suffered an adverse employment action, and there were circumstances suggesting that the employer acted with a discriminatory motive.” (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379.) Litigation of disability discrimination in the employment context proceeds in three stages. First, the plaintiff must establish a prima facie case of discrimination. If the plaintiff meets this burden, the employer must offer a legitimate, nondiscriminatory reason for the adverse employment decision. Third and finally, the plaintiff bears the burden to prove the employer‘s proffered reason is pretextual. (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.) We are concerned here only with the first analytical stage.
The issue of disability-based discrimination on the basis of a nondisabled employee‘s association with an individual with a disability has been the subject of very little litigation. Indeed, it has been addressed only once, tangentially, by one published California case prior to this case.12 In such circumstances, ” ‘[b]ecause of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes.’ [Citation.]” (Harris, supra, 56 Cal.4th at p. 218.) “[R]ecourse to federal antidiscrimination law is instructive only to the extent that its purpose and the FEHA‘s purposes are aligned . . . .” (Id. at p. 222.) “Because the ADA and FEHA share the goal of eliminating discrimination, we often look to federal case authority to guide the construction and application of FEHA . . . .” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 56-57 (Gelfo).) Accordingly, we turn now to Judge Posner‘s well-reasoned decision in Larimer v. International Business Machines Corp. (7th Cir. 2004) 370 F.3d 698 (Larimer), the seminal authority on disability-based associational discrimination under the ADA (Americans with Disabilities Act of 1990;
We are concerned here only with the “expense” category.13 While Rope‘s claim does not fit neatly within Larimer‘s narrow description of that category, Larimer provided an “illustrat[ive],” rather than an exhaustive, list of the kind of circumstances which might trigger a claim of associational discrimination. (Larimer, supra, 370 F.3d at p. 700.)
Moreover, and more importantly, Larimer was decided under the ADA; the provisions of FEHA are broadly construed and afford employees more protection than the ADA. (See
In our view, Rope has pleaded minimally sufficient facts to state a prima facie “expense” association claim under FEHA The SAC alleges that:
The facts of this case are unusual. Rope is alleging that Auto-Chlor fired him to avoid having to incur the expense of his leave under the DPA, which was intended for the very purpose of facilitating the donation of vital organs to individuals who are indisputably physically disabled. Rope has thus met his burden to show the adverse employment action occurred under circumstances raising a reasonable inference that the disability of his relative or associate was a substantial factor motivating the employer‘s decision. (See Harris, supra, 56 Cal.4th at p. 232.) Our holding should not be interpreted as a siren song for plaintiffs who, fearing termination, endeavor to prepare spurious cases by talking up their relationship at work to a person with a disability; such relationships do not, by themselves, give rise to a claim of discrimination. (See Dewitt v. Proctor Hospital (7th Cir. 2008) 517 F.3d 944, 952 (conc. opn. of Posner, J.).) As clarified by Judge Posner in his concurrence in Dewitt, to satisfy Larimer‘s “expense” test, “an employer who discriminates against an employee because of the latter‘s association with a disabled person is liable even if the motivation is purely monetary. But if the disability plays no role in the employer‘s decision . . . then there is no disability discrimination.” (Id. at p. 953 (conc. opn. of Posner, J.); see Larimer, supra, 370 F.3d at pp. 700-701.)
To qualify as a member of the protected class on the basis of his contention that he adequately pleaded a claim for direct or “actual” physical disability discrimination under FEHA, Rope must demonstrate an impairment that constitutes a physical disability according to the statutory definition. (Gelfo, supra, 140 Cal.App.4th at p. 47; Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256.) It is not enough merely to allege a physical disability. (Gelfo, at p. 47.) ” ‘[T]he touchstone of a qualifying [physical] disability is an actual or perceived physiological disorder which affects a major body system and limits the individual‘s ability to participate in one or more major life activities.’ [Citation.]” (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 353-354.) Rope has not established that he is himself physically disabled, and does not claim an ability to cure this fatal defect. At most, Rope alleges only that he anticipated becoming disabled for some time after the organ donation. This is insufficient. Rope cannot pursue a cause of action for discrimination under FEHA on the basis of his “actual” physical disability in the absence of factual allegations that he was in fact, physically disabled.
Nor was Rope himself perceived or treated by Auto-Chlor as having, or having had, a “physical disability” or as having, or having had, a disease, disorder, condition, or health impairment that might become a “physical disability.” (See
We say on this record that Auto-Chlor took action against Rope based on concerns or fear about his possible future disability. The relevant FEHA definition of an individual regarded as disabled applies only to those who suffer certain specified physical disabilities or those who have a condition with “no present disabling effect” but which “may become a physical disability . . . .” (
Rope alleges that Auto-Chlor‘s pretextual termination was a violation of fundamental public policies reflected in FEHA and the ADA because of his relationship with a person with a disability.15
To establish a claim for wrongful discharge in violation of public policy, a plaintiff must plead and prove (1) a termination or other adverse employment action; (2) the termination or other action was a violation of a fundamental public policy, as expressed in a constitutional, statutory, or regulatory provision; and (3) a nexus between the adverse action and the employee‘s protected status or activity. (Yanowitz, supra, 36 Cal.4th at p. 1042.) FEHA‘s policy prohibiting disability discrimination in employment is sufficiently substantial and fundamental to support a claim for wrongful termination in violation of public policy. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1159–1161; see
For the reasons the trial court erred in sustaining the demurrer to the associational disability discrimination claim, it also erred in sustaining the demurrer to this claim.
d. Failure to maintain a discrimination-free environment
Rope‘s fourth cause of action alleges that Auto-Chlor violated FEHA by failing to take the necessary steps to provide an environment free from discrimination. (
That portion of the judgment dismissing the causes of action for association disability and failure to maintain a workplace free of discrimination in violation of the California Fair Employment and Housing Act is reversed, as is the judgment dismissing the claim for wrongful termination in violation of public policy. The matter is remanded to the trial court with directions to vacate its order sustaining Auto-Chlor System of Washington, Inc.‘s demurrer without leave to amend and to enter a new and different order overruling its demurrer as to these causes of action. In all other respects, the judgment is affirmed. The parties shall bear their own costs on appeal.
Mallano, P. J., and Rothschild, J., concurred.
Respondent‘s petition for review by the Supreme Court was denied January 27, 2014, S214798.