1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEANINE RANDALL, individually and as No. 2:23-cv-00476-DJC-CSK successor in interest to SONIA HUEY, 12
13 Plaintiff, ORDER 14 v. 15 HOME DEPOT, et al., 16 Defendants. 17 18 19 Pending before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint 20 under Federal Rule of Civil Procedure 12(b)(6). Defendant alleges that Plaintiff’s 21 claims fail because they are time barred and/or fail to state a claim upon which relief 22 can be granted. For the reasons discussed below, the Court GRANTS IN PART and 23 DENIES IN PART the Motion to Dismiss. 24 BACKGROUND 25 Plaintiff Jeanine Randall filed suit against Defendant Home Depot U.S.A. 26 following the death of her mother, Sonia Huey. Plaintiff is the heir and successor in 27 interest of Huey. (Compl. (ECF No. 1-1, Ex. A) ¶ 19.) Defendant employed Huey at the 28 Home Depot store in Auburn, California in 2020, during the start of the COVID-19 1 pandemic. (See id. ¶¶ 1, 2.) Huey worked in a small, windowless office that she 2 shared with another employee. (Id. ¶ 2.) Huey had health conditions that put her at a 3 high risk for death or serious illness from COVID-19, including diabetes, chronic 4 obstructive pulmonary disease, heart disease, and morbid obesity. (Id. ¶ 4.) 5 Defendant was aware of Huey’s health conditions and had even allowed her to park 6 closer to the store entrance due to her breathing problems. (Id.) 7 In April 2020, Huey provided Home Depot Human Resources with a letter from 8 her doctor stating that she was at high risk for COVID-19 given her serious chronic 9 medical conditions per CDC guidelines. (Id. ¶ 6.) Huey also requested 10 accommodations for her disabilities, including compliance with public health 11 guidance and occupational safety standards intended to limit the spread of COVID- 12 19. (Id. ¶ 7.) These requests were made to Larry Snyder, the Home Depot regional 13 manager in the Sacramento area, Tawny Gonzalez, who worked in Human Resources, 14 and April, Huey’s direct manager. (Id. ¶¶ 7, 39.) But Defendant did not allow Huey to 15 work remotely and is alleged to have failed to implement basic COVID-19 safety 16 measures. (Id. ¶ 8.) 17 In early December 2020, Plaintiff alleges that Defendant made no effort to 18 accommodate Huey’s needs and had her train an employee who Defendant knew had 19 not abided by COVID-19 guidelines — including failing to follow the quarantine period 20 while still exhibiting COVID-19 symptoms. (Id. ¶¶ 9,10.) On December 8, 2020, Huey 21 developed symptoms consistent with COVID-19 and tested positive for COVID-19 two 22 days later. (Id. ¶ 11.) Huey was told “not to tell anyone” about her positive result. (Id.) 23 On December 12, 2020, Huey was hospitalized after her symptoms worsened, and 24 Plaintiff also developed COVID-19 symptoms. (Id. ¶ 13.) By December 21, 2020, 25 Huey was intubated, went into a coma, and ultimately passed away on February 1, 26 2021. (Id. ¶¶ 14,15, 86.) Huey’s cause of death was listed as “pneumonia due to 27 [COVID-19].” (Id. ¶ 86.) Plaintiff continues to struggle with the long-term health 28 effects of her own COVID-19 diagnosis, including an altered sense of smell, extreme 1 fatigue, brain fog, intermittent joint paint, shortness of breath and issues with short- 2 term memory. (Id. ¶ 16.) In a worker’s compensation case that was filed on behalf of 3 Huey a Qualified Medical Examiner found “compelling” evidence that Huey’s death 4 from COVID-19 was caused by workplace exposure. (Id. ¶ 17.) 5 Plaintiff, as Huey’s successor in interest, asserts violations of the Fair 6 Employment and Housing Act for disability discrimination, failure to accommodate, 7 failure to engage in a good faith interactive process regarding requests for 8 accommodation, and failure to prevent discrimination. Plaintiff, as Huey’s successor in 9 interest, also asserts tort claims for adverse employment action in violation of public 10 policy, premises liability, and wrongful death based on Defendant’s violation of FEHA. 11 Lastly, Plaintiff individually brings causes of action for negligence and negligent 12 infliction of emotional distress against Defendant, but the Parties stipulated to the 13 dismissal of these claims with prejudice (ECF No. 19).1 Defendant now moves to 14 dismiss Plaintiff’s complaint, alleging that some of her claims are barred, and others 15 fail to plausibly state a claim upon which relief can be granted. (See generally Mot. 16 Dismiss (ECF No. 5).) Plaintiff issued an Opposition (Opp’n (ECF No. 9),) and 17 Defendant Replied (Reply (ECF No. 13),). The matter was taken under submission 18 without oral argument in accordance with Local Rule 230(g). 19 LEGAL STANDARD 20 A party may move to dismiss for “failure to state a claim upon which relief can 21 be granted[.]” Fed. R. Civ. P.12(b)(6). The motion may be granted only if “the 22 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable 23 legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 24 2008) (citation omitted). The court assumes all factual allegations are true and 25 construes “them in the light most favorable to the nonmoving party.” Steinle v. City &
26 1 Defendant also requests that this Court stay the litigation pending the outcome of the California 27 Supreme Court’s guidance on certified questions in Kuciemba v. Victory Woodworks, Inc., 31 F.4th 1268 (9th Cir. 2022) because it relates to the NIED and negligence claims. (MTD at 9.) Because those causes 28 of actions are dismissed with prejudice the Court DENIES Defendant’s request as moot. 1 Cnty. S.F., 919 F.3d 1154, 1160 (9th Cir. 2019) (citation omitted). However, if the 2 complaint’s allegations do not “plausibly give rise to an entitlement to relief” the 3 motion must be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A complaint 4 need only contain “a short and plain statement of the claim showing that the pleader 5 is entitled to relief[,]” Fed. R. Civ. P. 8(a)(2), not “detailed factual allegations,” Bell. Atl. 6 Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, this rule demands more than 7 unadorned accusations; “sufficient factual matter” must make the claim at least 8 plausible. Iqbal, 556 U.S. at 678. In the same vein, conclusory or formulaic recitations 9 of elements do not alone suffice. See id. “A claim has facial plausibility when the 10 plaintiff pleads factual content that allows the court to draw the reasonable inference 11 that the defendant is liable for the misconduct alleged.” Id. (citation omitted). 12 DISCUSSION 13 I. Statute of Limitations 14 Defendant argues that Plaintiff’s fifth cause of action for adverse employment 15 action in violation of public policy and sixth cause of action for premises liability 16 should be dismissed because they are barred by the applicable statute of limitations. 17 Under California Civil Procedure Code § 335.1, “[a]n action . . . for the death of, an 18 individual caused by the wrongful act or neglect of another” has a two-year statute of 19 limitations. Plaintiff does not disagree that section 335.1 governs the causes of 20 actions here. Rather, the Parties dispute the date that the claims accrued. 21 Plaintiff contends that the premises liability and adverse employment action 22 claims did not accrue until Huey’s death on February 1, 2021. Defendant argues that 23 the relevant date is December 8, 2020, which is when Huey contracted COVID-19. 24 A plaintiff generally must file suit within a specified time after the cause of 25 action accrues. Cal. Code Civ. Proc. § 312. Accrual occurs for a cause of action “when 26 [it] is complete with all of its elements — those elements being wrongdoing, harm, and 27 causation.” Pooshs v. Philip Morris USA, Inc., 51 Cal. 4th 788, 797 (2011) (citation and 28 internal quotations omitted). In situations where a plaintiff is aware of both an injury 1 and its wrongful cause but is uncertain as to how serious the resulting damages will be 2 or whether additional injuries will later manifest, the California Supreme Court 3 generally favors “prompt litigation.” Id. This is true even when the extent of damages 4 is speculative. Id. (citing Davies v. Krasna, 14 Cal. 3d 502, 514 (1975) (“[T]he infliction 5 of appreciable and actual harm, however uncertain in amount, will commence the 6 statutory period.”). But under the discovery rule, accrual is postponed until the 7 plaintiff “discovers, or has reason to discover, the cause of action.” Norgart v. Upjohn 8 Co., 21 Cal. 4th 383, 397 (1999). Discovery occurs when the plaintiff develops reason 9 to suspect a factual basis for the action. Pooshs, 51 Cal. 4th 797. (citations omitted). 10 Plaintiff primarily relies on Pooshs v. Philip Morris USA, to support her argument 11 that the later accrual date applies here. In Pooshs, the California Supreme Court 12 considered “[w]hen multiple distinct personal injuries allegedly arise from [a single 13 harm], does the earliest injury trigger the statute of limitations for all claims, including 14 those based on the later injury?” Id. at 792. There, the plaintiff was a long-term 15 cigarette smoker who was diagnosed with COPD caused by her smoking habit. Id. at 16 791. Plaintiff did not sue the cigarette manufacturers upon receiving her COPD 17 diagnosis, and the statutory period elapsed. Id. A few years later, the plaintiff was 18 diagnosed with periodontal disease, again caused by her smoking habit, but did not 19 sue and the statutory period elapsed. Id. Another couple of years later, the plaintiff 20 was diagnosed with lung cancer and sued the cigarette manufacturer. Id. The 21 California Supreme Court held that the statute of limitations had not run on her claim. 22 See id. at 802–03. The Court reasoned that “two physical injuries — both caused by the 23 same tobacco use over the same period of time — can, in some circumstances, be 24 considered qualitatively different for purposes of determining when the applicable 25 statute of limitations period begins to run.” Id. at 792 (citation and internal quotations 26 omitted). Because the plaintiff had plausibly asserted that her lung disease was 27 “separate and distinct” from her other two smoking-related diseases, the earlier 28 diagnoses did not trigger the statute of limitations for a lawsuit based on her later 1 disease. Id. at 801–02. Lastly, the California Supreme Court limited its holding to 2 latent disease cases, without determining whether the same rule should apply in other 3 contexts. Id. at 792. 4 Here, the premises liability and adverse employment action claims are rooted 5 in Huey’s diagnosis and death. Considering the Pooshs decision, it does not appear 6 from the face of the Complaint that Huey suffered from “separate and distinct” injuries 7 such that the February 2021 date control. In Pooshs, the California Supreme Court 8 acknowledged the plaintiff’s allegations that her lung cancer was separate from her 9 earlier-discovered COPD and periodontal disease. See id. at 802–03 (explaining that 10 plaintiff alleged “that COPD is a separate illness, which does not pre-dispose or lead 11 to lung cancer and that it has nothing medically, biologically, or pathologically to do 12 with lung cancer.”). Here, however, Huey’s death is alleged to be the direct result of 13 her COVID-19 diagnosis, rather than a separate harm unrelated to the initial 14 diagnosis. She was diagnosed in December 2020 and remained hospitalized from 15 then until her death in February 2021. Her symptoms and ultimate cause of death link 16 back to the COVID-19 diagnosis. As such, there is no sign that the two physical 17 injuries here are “qualitatively different” for purposes of triggering a later date of 18 accrual. Thus, Defendant’s Motion to Dismiss with respect to the fifth cause of action 19 for adverse employment action in violation of public policy and sixth cause of action 20 for premises liability is GRANTED with leave to amend. 21 II. California Workers’ Compensation Act Exclusive Remedy Rule 22 Defendant also argues that Plaintiff’s seventh cause of action for wrongful death 23 must be dismissed because it is barred by the California Workers’ Compensation Act 24 (WCA).2 Plaintiff contends that the cause of action is not barred because it is rooted in 25 violations of California’s anti-discrimination statutes such that the exclusive remedy 26 rule is inapplicable. The WCA establishes a comprehensive scheme that governs
27 2 Defendant also argues that Plaintiff’s sixth cause of action for premises liability must be dismissed on 28 this ground, but the Court has found that the statute of limitations on the claim has run. 1 compensation provided to employees in California for injuries they experience in the 2 course and scope of their employment. Charles J. Vacanti, M.D., v. State Comp. Ins. 3 Fund, 24 Cal. 4th 800, 810 (2001). The “compensation bargain” lies at the heart of this 4 statutory scheme. Under this compromise, employees are generally prohibited from 5 pursuing tort remedies against an employer or its agents in exchange for employer 6 liability for almost any injury sustained by its employees arising out of and in the 7 course of their employment. Id. at 811 (citation omitted). The workers’ compensation 8 exclusivity rule “generally limits an employee’s remedies against an employer for 9 work-related injuries to those remedies provided by the statute itself” to ensure the 10 effectiveness of the compensation bargain. King v. CompPartners, Inc., 5 Cal. 5th 11 1039, 1051 (2018) (citations omitted). 12 To determine whether the exclusivity rule bars a cause of action, courts first 13 determine whether the alleged injury falls within the scope of the provision and then 14 considers the nature of the underlying acts. Vacanti, 24 Cal. 4th at 811–12. Where 15 such acts “are a normal part of the employment relationship, such as demotions, 16 promotions, criticism of work practices, and frictions in negotiations as to grievances,” 17 the exclusivity bar likely applies. Fermino v. Fedco, Inc., 7 Cal. 4th 701, 712 (1994). 18 There are two limited exceptions to WCA preemption: (1) where the employer’s 19 conduct contravenes a fundamental public policy and (2) where the conduct in 20 question “exceeds the risks inherent in the employment relationship.” Thomas v. Starz 21 Ent., LLC, No. 2:15-cv-09239-CAS-MRWx, 2016 WL 844799, at *8 (C.D. Cal. Feb. 29, 22 2016). 23 The first exception is inapplicable here, as the California Supreme Court has 24 limited it to Tameny wrongful discharge claims. Miklosy v. Regents of Univ. of 25 California, 44 Cal. 4th 876, 902–03 (2008). The second exception applies where 26 conduct exceeds the risks in the employment relationship. In Miklosy, the California 27 Supreme Court rejected the argument that whistleblower retaliation was not a risk 28 1 inherent in the employment relationship and held that the plaintiff’s IIED clam was 2 subject to worker’s compensation exclusivity. Id. at 903. 3 Plaintiff primarily relies on Light v. Department of Parks & Recreation, 14 Cal. 4 App. 5th 75, 96–99 (2017), a California Court of Appeal decision, to support her 5 argument that the exclusivity rule does not apply. 3 In Light, the California Court of 6 Appeal considered Miklosy in the context of an IIED claim premised on a FEHA 7 violation. 14 Cal. App. 5th at 96. There, the plaintiff employee filed an action against 8 her employer for retaliation, disability discrimination, and failure to prevent 9 discrimination or retaliation under FEHA, assault, false imprisonment, and intentional 10 infliction of emotional distress. Id. at 80–81. The court held that the plaintiff’s IIED 11 claim was not barred by workers’ compensation exclusivity because her injuries were 12 based on conduct prohibited by FEHA. See id. at 101. The court distinguished 13 Miklosy on the ground that it did not consider case law supporting the proposition 14 that conduct violating FEHA is not part of the employment relationship. Id. at 100 15 (collecting cases discussing FEHA and IIED). Thus, the California Court of Appeal held 16 that plaintiff’s IIED claim was not subject to the exclusive remedy rule because of the 17 long-held view that unlawful discrimination and retaliation in violation of FEHA is 18 outside the compensation bargain. Id. at 101. 19 Although the Court recognizes that Light and Miklosy involved IIED claims, 20 Light’s discussion of FEHA violations in the context of workplace harms is compelling. 21 Here, Plaintiff’s claim is based on the argument that a wrongful death occurred 22 because Defendant violated the FEHA in its treatment of Huey’s physical disability. 23 FEHA enacts the State’s goal “to protect and safeguard the right and opportunity of all 24 persons to seek, obtain, and hold employment without discrimination. . . on account 25 of. . .physical disability. . . .” Cal. Govt. Code § 12920. Because unlawful 26
27 3 Defendant cites to two California Court of Appeals cases: Yau v. Allen, 229 Cal. App. 4th 144 (2014) and Vasquez v. Franklin Mgmt. Real Est. Fund, 222 Cal. App. 4th 819 (2013). But the Court finds the 28 discussion in Light to be more on point to the instant discussion. 1 discrimination and retaliation are outside the scope of the compensation bargain, and 2 expressly prohibited by a California statute, the Court finds that the exclusivity rule 3 does not apply. See, e.g., Livingston v. Kemper Sports Mgmt., No. 1:12-cv-01427-LJO- 4 SKO, 2012 WL 5349174, at *8 (E.D. Cal. Oct. 26, 2012) (noting that plaintiffs’ wrongful 5 death claim based on defendants’ alleged FEHA violations would not be barred by 6 the exclusivity provisions of the WCA). 7 The Executive Order referenced by Defendant does not change this analysis. 8 The Order appears to discuss causation as it pertains to COVID-19 and the workplace 9 and does not impact Plaintiff’s claims. Defendant also contends that Plaintiff’s filing of 10 a worker’s compensation claim on Huey’s behalf concedes that the behavior here falls 11 within the compensation bargain. That said, at this stage the Court does not possess 12 enough detail about the contours of the worker’s compensation claim. (See 13 Compl. ¶¶ 17, 70 referencing Huey’s worker’s compensation claim.) Thus, Plaintiff’s 14 claim for wrongful death premised on FEHA violations may proceed and Defendant’s 15 motion to dismiss as to the seventh cause of action is DENIED. 16 III. FEHA Claims 17 A. Disability Discrimination 18 Plaintiff’s first cause of action is disability discrimination under FEHA. To state a 19 prima facie disability discrimination claim, the plaintiff must plead that she “(1) 20 suffered from a disability, or was regarded as suffering from a disability; (2) could 21 perform the essential duties of the job with or without reasonable accommodations, 22 and (3) was subjected to an adverse employment action because of the disability or 23 perceived disability.” Wills v. Super. Ct., 195 Cal. App. 4th 143, 159–60 (2011). The 24 Court finds that Plaintiff has not established that Huey was subjected to adverse 25 employment action because of her disability. 26 1. Qualifying Disability 27 To state a FEHA claim, the plaintiff must first plead a disability covered by 28 FEHA. See Cal. Gov’t Code § 12940(a). FEHA includes temporary disabilities within 1 its broad definition of disability. Diaz v. Fed. Express Corp., 373 F. Supp. 2d 1034, 2 1048 (C.D. Cal. 2005). The California Legislature clarified that conditions such as 3 diabetes and heart disease are explicitly covered under FEHA. Id. (citing Cal. Gov. 4 Code §12926.1(c)). 5 Here, the Complaint states that Huey suffered from diabetes and other chronic 6 health conditions. (Compl. ¶ 4.) These health issues caused Huey to suffer from 7 breathing problems and placed her at a higher risk of serious illness from COVID-19. 8 (Id. ¶¶ 4, 6.) Furthermore, Plaintiff asserts that Defendant was aware of Huey’s health 9 conditions and their impact on her abilities. She was allowed to park closer to the 10 store because of her breathing problems. (Id. ¶ 31.) As such, Plaintiff sufficiently pled 11 that Huey had multiple qualifying disabilities under FEHA. For purposes of this 12 motion, Plaintiff has also sufficiently alleged how these disabilities impacted Huey’s 13 major life activities. See, e.g., Madrigal v. Performance Transp., LLC, No. 5:21-cv- 14 00021-VKD, 2021 WL 2826704, at *3 (N.D. Cal. July 7, 2021) (holding that the plaintiff 15 pled a qualifying disability by stating he both had diabetes and diabetes put him at a 16 higher risk for serious illness from COVID-19.) 17 2. Essential Functions 18 FEHA applies to individuals who are able to perform the essential functions of 19 the job. See Cal. Gov’t Code § 12940(a)(1) (“[t]his part does not prohibit an employer 20 from . . . discharging an employee with a physical . . . disability . . . if the employee, 21 because of [his or her] physical . . . disability, is unable to perform [his or her] essential 22 duties even with reasonable accommodations.”). Here, Huey was a Customer Order 23 Specialist at Home Depot, which required her to place large orders for contractors 24 and work as a middleman between customers and vendors. (Id. ¶ 34.) There are no 25 contentions that Huey could not perform her job as a result of her disabilities. Rather, 26 Huey could perform her work, which was exclusively done over the phone and 27 computer. (Id.) For purposes of this motion, these facts show that Huey was a 28 qualifying individual under FEHA. 1 3. Adverse Employment Action 2 Adverse employment actions are those “that are reasonably likely to adversely 3 and materially affect an employee’s job performance or opportunity for 4 advancement.” Doe v. Dep’t of Corr. & Rehab., 43 Cal. App. 5th 721, 734 (2019) 5 (citing Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1054 (2005)). If the claim is 6 against a corporation, the “corporation itself must have taken some official action with 7 respect to the employee, such as hiring, firing, failing to promote, adverse job 8 assignment, significant change in compensation or benefits, or official disciplinary 9 action.” Id. (citing Roby v. McKesson Corp., 47 Cal. 4th 686, 706, 708 (2009)). A court 10 must determine “whether [the] employment action materially affected ‘terms and 11 conditions of employment,’ with that term being liberally construed in order to afford 12 employees ‘appropriate protection against employment discrimination.’” Achal, 114 13 F. Supp. 3d at 797 (citing Cal. Gov't Code §§ 12940(a) and (h); Yanowitz, 36 Cal. 4th at 14 1054). Rejecting an accommodation request is not a qualifying adverse employment 15 action. Doe, 43 Cal. App. 5th at 735–36. 16 Here, Plaintiff argues that Defendant discriminated against Huey based on her 17 disability because her job requirements were not altered after she shared that she was 18 at high risk for COVID-19. However, denial of accommodation requests does not 19 sufficiently show adverse employment action. See Doe, 43 Cal. App. 5th at 735–36 20 (“No court has ever held that a failure to reasonably accommodate an employee’s 21 disability — which is a separate cause of action under FEHA [] — can qualify as the 22 adverse action underlying a discrimination or retaliation claim.”). The cases cited by 23 Plaintiff do not suggest otherwise. First, in Davis v. Team Electric Company, 520 F.3d 24 1080, 1089 (9th Cir. 2008), the Ninth Circuit explained that in the context of a Title VII 25 claim, assigning more, or more burdensome, work responsibilities is an adverse 26 employment action. In Asaro v. Sealy Mattress Mfg. Inc, No. 3:09-cv-00295-ST, 2010 27 WL 4812809, at *10 (D. Or. Nov. 19, 2010), the district court found that plaintiff was 28 subjected to a significant alteration in job duties to constitute an adverse employment 1 action. Both cases suggest that some alteration of job duties is needed to support a 2 disability discrimination claim. Here, however, such allegations are lacking. Thus, 3 Plaintiff has failed to show that an adverse employment action occurred, and 4 Defendant’s Motion to Dismiss Plaintiff’s first cause of action for disability 5 discrimination is GRANTED with leave to amend. 6 B. Failure to Prevent Disability Discrimination 7 Plaintiff also alleges a failure to prevent disability discrimination under FEHA. 8 However, a necessary element of a failure to prevent discrimination claim is the 9 discrimination itself. See Mayes v. Kaiser Found. Hosp., 917 F. Supp. 2d 1074, 1079– 10 80 (E.D. Cal. 2013) (citation omitted). If a plaintiff does not adequately plead her 11 disability discrimination claim, then the failure to prevent disability discrimination 12 claim is also not sufficiently pled. See id. Both Parties acknowledged in their briefings 13 that the failure to prevent disability discrimination claim depends on the adequacy of 14 the disability discrimination claim. (See Mot. at 24; Opp’n at 20–21.) For the reasons 15 stated above, the disability discrimination claim is not sufficiently pled. Accordingly, 16 the Court GRANTS Defendant’s Motion to Dismiss the fourth cause of action for failure 17 to prevent disability discrimination claim with leave to amend. 18 C. Failure to Provide Reasonable Accommodations 19 Plaintiff also alleges a failure to provide reasonable accommodations under 20 FEHA. To state a prima facie claim for failure to provide reasonable accommodations, 21 the plaintiff must plead that “(1) the plaintiff has a disability covered by FEHA; (2) the 22 plaintiff is qualified to perform the essential functions of the position; and (3) the 23 employer failed to reasonably accommodate the plaintiff's disability.” Achal, 114 F. 24 Supp. 3d at 798 (citing Scotch v. Art Inst. of Cal.—Orange Cnty., Inc., 173 Cal. App. 4th 25 986, 1010 (2009)). A reasonable accommodation is a “modification or adjustment to 26 the workplace that enables a disabled employee to perform the essential functions of 27 the job held or desired.” Id. at 798–99 (citation omitted). Once aware of an 28 1 employee’s request “the employer has an affirmative duty to reasonably 2 accommodate, which is not extinguished by one effort.” Id. at 799 (citation omitted). 3 An employer does not have to provide the employee the best accommodation or the 4 accommodation the employee specifically requests to satisfy the need to reasonably 5 accommodate the employee. Hanson v. Lucky Stores, 74 Cal. App. 4th 215, 228 6 (1999). 7 As established above, Huey suffered from a disability under FEHA and could 8 perform the essential functions of her job, supra §§ III.A.1–2. As for the 9 accommodations sought, Plaintiff alleges that Huey made requests to Larry Snyder, 10 Tawny Gonzales, her direct manager, and the Home Depot Human Resources 11 Department. (Compl. ¶¶ 6, 7.) Huey requested to work remotely as an 12 accommodation and Plaintiff alleges that all of Huey’s job duties could be completed 13 at home. (Id. ¶¶ 34, 40.) After Huey got sick, she was permitted to work from home 14 and alleges she could complete all of her assigned tasks remotely. (Id. ¶ 71.) Prior to 15 her hospitalization, Huey requested that Defendant limit the number of people in her 16 office at a time to prevent the potential spread of COVID-19. (Id. ¶ 88.) Plaintiff 17 alleges that none of Huey’s requested accommodations were granted. 18 While Defendant instituted a masking and a quarantining policy, Plaintiff 19 alleges that the lack of enforcement of those policies failed to reasonably 20 accommodate Huey’s needs due to her disabilities and thus do not compel dismissal 21 at this stage. (See id. ¶ 8.) Plaintiff alleges that Defendant allowed an employee to 22 come to work while still symptomatic with COVID-19. (Id. ¶ 9.) Plaintiff also alleges 23 even after Defendant was aware of the employee’s COVID-19 infection, Huey was still 24 required to train the new employee while she was symptomatic. (Id. ¶ 10.) And 25 Plaintiff has alleged facts that show Defendant did not follow or enforce their own 26 masking policies and failed to respond to Huey’s request that they enforce their 27 masking guidelines. (See id. ¶¶ 42–48.) 28 1 Plaintiff has pled sufficient facts to show there was no ongoing effort to 2 accommodate Huey as required by FEHA and that Defendant did not communicate 3 with Huey about options to accommodate her ongoing needs. Thus, Defendant’s 4 Motion to Dismiss the second cause of action is DENIED. 5 D. Failure to Engage in Interactive Process 6 Plaintiff next alleges Defendant failed to engage in a good faith interactive 7 process as required by FEHA. To plead a failure to engage in interactive process 8 claim the plaintiff must allege that “(1) the plaintiff has a disability or medical condition 9 that was known to the employer, (2) the plaintiff requested that his employer make a 10 reasonable accommodation for that disability so that he could perform his job duties, 11 (3) the employer failed to participate in a timely, good faith interactive process with 12 the plaintiff, and (4) the employer's failure to engage in a good faith interactive 13 process was a substantial factor in causing the plaintiff’s harm.” Lugo v. Performance 14 Transp., LLC, No. 2:20-cv-00519-DMG-KS, 2020 WL 7034336, at *3 (C.D. Cal. Oct. 5, 15 2020) (citing Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 61 (2006)). As 16 discussed above, Plaintiff sufficiently pled that Huey suffered from a disability and 17 could perform the essential duties of the job. 18 The plaintiff must allege he or she “tender[ed] a specific request for a necessary 19 accommodation.” King v. United Parcel Serv., Inc., 152 Cal. App. 4th 426, 443 (2007) 20 (internal quotations omitted). The employee must also identify a reasonable 21 accommodation that was available at the time the process should have taken place 22 but does not need to identify that accommodation in their pleading. Schauf v. Am. 23 Airlines, No. 1:15-cv-01172-SKO, 2016 WL 3407661, at *6 (E.D. Cal. June 20, 2016) 24 (citing Nealy v. City of Santa Monica, 234 Cal. App. 4th 359, 379 (2015)). Once the 25 request is initiated, the employer has a continuous obligation to engage in an 26 interactive process. Swanson v. Morongo Unified Sch. Dist., 232 Cal. App. 4th 954, 27 971 (2014) (citation omitted)). The interactive process “requires communication and 28 good-faith exploration of possible accommodations between employers and 1 individual employees with the goal of identifying an accommodation that allows the 2 employee to perform the job effectively.” Achal, 114 F. Supp. 3d at 800 (citation 3 omitted). 4 Plaintiff alleges that Huey requested a variety of different accommodations for 5 her disabilities, but that management did not discuss possible accommodations with 6 Huey. Moreover, Huey’s requests to enforce the masking and quarantine policies, 7 particularly when it came to training a symptomatic employee, were outright ignored. 8 As a result of Defendant’s actions, Plaintiff contends that Huey was exposed to COVID- 9 19 in the workplace and ultimately died. 10 The Court finds that these allegations are sufficient to state a cause of action. 11 Plaintiff has alleged multiple and ongoing communications with multiple Home Depot 12 employees in management and in Human Resources roles. For purposes of this 13 motion, this is sufficient to show Huey requested accommodations and started the 14 interactive process. Therefore, Plaintiff has pled sufficient facts to support the failure 15 to engage in interactive process claim and Defendant’s Motion to Dismiss Plaintiff’s 16 third cause of action is DENIED. 17 IV. Punitive Damages 18 Defendant also argues that Plaintiff’s request for punitive damages should be 19 dismissed. (Mot. at 25.) To receive punitive damages, the plaintiff must prove that the 20 defendant is guilty of oppression, fraud, or malice. Cal. Civ. Code § 3294(a). An 21 employer is only liable for an employee’s actions if they had “advance knowledge of 22 the unfitness of the employee and employed him or her with a conscious disregard of 23 the rights or safety of others or authorized or ratified the wrongful conduct for which 24 the damages are awarded or was personally guilty of oppression, fraud, or malice.” 25 Cal. Civ. Code § 3294(b). For a corporate employer, the advance knowledge, 26 conscious disregard, authorization, or ratification “must be on the part of an officer, 27 director, or managing agent of the corporation.” Id. Malice means conduct that is 28 intended by the defendant to cause injury to the plaintiff or despicable conduct that it 1 is done by the defendant with a willful and conscious disregard for the rights or safety 2 of others. Cal. Civ. Code § 3294(c)(1). Oppression means despicable conduct that 3 subjects a person to cruel and unjust hardship in conscious disregard for their rights. 4 Cal. Civ. Code § 3294(c)(2). 5 Managing agents are employees who “exercise[] substantial discretionary 6 authority over decisions that ultimately determine corporate policy.” White v. 7 Ultramar, 21 Cal. 4th 563, 573 (1999). To determine whether an employee is a 8 managing agent, the plaintiff must show that employee “exercised substantial 9 discretionary authority over significant aspects of a corporation’s business.” Id. at 577. 10 This is a question of fact determined on a case-by-case basis. Id. at 567. 11 At this stage, Plaintiff has plausibly alleged that Snyder could be a managing 12 agent for purposes of this action. In particular, Plaintiff alleges that Huey made 13 requests directly to Snyder. (Compl. ¶ 38.) Snyder was the store manager for five 14 Home Depot stores at the time of the events. (Id.) Snyder’s role is similar to the 15 employee at issue in White v. Ultramar, 21 Cal. 4th at 577, where the employee was a 16 zone manager for Ultramar and managed eight stores and at least sixty-five 17 employees. Id. at 577. The California Supreme Court concluded that the employee 18 exercised substantial discretionary authority over vital aspects of defendant’s 19 business, including managing multiple stores on a daily basis. Id. As such, Plaintiff 20 here has satisfied the managing agent requirement for Snyder.4 21 Plaintiff has also alleged sufficient facts at this stage to indicate that the 22 managing agent acted with malice for purposes of punitive damages. As discussed 23 above, Plaintiff alleges that Snyder ignored or disregarded Huey’s requests for 24 accommodations. Plaintiff alleges that after Huey stated if she got COVID-19 she 25 would die, Snyder still refused her request and did not engage in a process to find a 26
27 4 Plaintiff also alleges that Huey made requests to Tawny Gonzales. There are insufficient facts to allege that Gonzalez was a managing agent. Should Plaintiff amend her Complaint, she made include more 28 information about Gonzalez’s role. 1 | reasonable accommodation. (See Compl. 140.) At this stage, Plaintiff has made a 2 | sufficient showing of actions that indicate a conscious disregard for Huey’s rights and 3 | Defendant's Motion to Dismiss the prayer for punitive damages is DENIED. 4 CONCLUSION 5 For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART 6 | Defendant's Motion to Dismiss (ECF No. 5). The Motion is GRANTED as to □□□□□□□□□□□ 7 | first, fourth, fifth, and sixth causes of action. The Motion is DENIED as to Plaintiff's 8 | second, third, and seventh causes of action and as to the prayer for punitive damages. 9 | Plaintiffis granted leave to amend. Within 30 days of this Order, Plaintiff shall either 10 | file a First Amended Complaint or inform the Court of her intention to proceed on the 11 | surviving causes of action. 12 13 IT IS SO ORDERED. 14 | Dated: _September 25, 2025 “Dane A CoD tto— Hon. Daniel alabretta UNITED STATES DISTRICT JUDGE 16 17 18 19 | DJCé - Randall23cv00476.mtd 20 21 22 23 24 25 26 27 28