Bagatti v. Department of Rehabilitation

• Decision Date: 02 April 2002
• Docket Number: No. C037965.,C037965.
• Citation: 118 Cal.Rptr.2d 443,97 Cal.App.4th 344
• Parties: Marilyn BAGATTI, Plaintiff and Appellant, v. DEPARTMENT OF REHABILITATION et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

118 Cal.Rptr.2d 443

97 Cal.App.4th 344

Marilyn BAGATTI, Plaintiff and Appellant, v. DEPARTMENT OF REHABILITATION et al., Defendants and Respondents.

No. C037965.

Court of Appeal, Third District.

April 2, 2002.

John R. Hargreaves, for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Jacob Appelsmith, Lead Supervising Deputy Attorney General, Alicia M.B. Fowler, Supervising Deputy Attorney General, A. Kay Lauterbach, Deputy Attorney General, for Defendants and Respondents.

SIMS, Acting P.J.

Plaintiff Marilyn Bagatti appeals from the judgment of dismissal entered following the sustaining of a demurrer without leave to amend to her second amended complaint for damages allegedly caused by defendants' failure to provide a reasonable accommodation for her disability as required by the California Fair Employment and Housing Act (FEHA). We shall conclude that, although some allegations in the complaint do not state a cause of action, other allegations do state a cause of action. We shall therefore affirm the judgment in part and reverse the judgment in part.

Plaintiffs second amended complaint pleads in pertinent part as follows:

"1. Plaintiff, Marilyn Bagatti, is and at all times hereinafter mentioned was a resident of Sacramento County, California.

"2. Defendant, California Department of Rehabilitation, is and at all times hereinafter mentioned was an agency of the State of California and existed within the State of California, with its principal place of business located in Sacramento, California.

"3. Defendant, Michael D. Fuentes, is and at all times hereinafter mentioned was employed by and acting within the course and scope of his employment as an agent of the California Department of Rehabilitation and the State of California in the position of Chief Office of Civil Rights.

"[¶] ... [¶]

"6. Plaintiff began her employment with the California Department of Rehabilitation on July 1, 1987. Plaintiff worked for the California Department of Rehabilitation for nearly twelve years. She worked in various jobs including Senior Accounting Clerk and Supervising Accounting Clerk for the last eight years. In this position she was responsible for supervising and overseeing the work of five employees and the hiring of some employees. Over the years, Plaintiff received merit pay increases, which are accompanied by a signed statement stating Plaintiff was fulfilling her job duties, and Plaintiff was generally given favorable performance evaluations[.]

"7. The public policy of the State of California set forth within Government Code section 12940 supports employment and utilization of persons with a medical condition or physical handicap. If it is within the ability of the employer to make a reasonable accommodation to such medical condition, such as job restructuring, reassignment or transfer, part-time or a modified work schedule, such reasonable accommodation must be made by the public entity.

"8. As a result of severe polio and post polio, Plaintiff is a disabled individual who is unable to walk long distances. Plaintiff was substantially impaired in her ability to move around her work site as needed and to transport herself from her car to her work station.

"9. Beginning on or about February, 1998, plaintiff requested a reasonable accommodation of her disability in the form of motorized transportation from her parked car to her work station and motorized transportation within her work site.

"10. Her job duties required her to transport herself long distances within the work site and to travel to and from the work site.

"11. Plaintiffs immediate supervisor, Betty Jong, refused on or about June, 1998, to provide any accommodation. Jong denied Plaintiffs accommodation request for a motorized vehicle and even refused to provide hand railing or chairs along the hallways of the job site to aid Plaintiff in transporting herself around the site. Jong told Plaintiff and Plaintiffs co-workers that Plaintiff should just retire.

"12. On July 15, 1998, Michael D. Fuentes, Chief Office of Civil Rights and A.A. officially denied Plaintiffs request for a reasonable accommodation.

"13. On November 30, 1998, Plaintiff filed a complaint with the Department of Fair Employment and Housing stating that she was discriminated against based on her disability and wrongfully denied a reasonable accommodation of her disability.

"14. On December 21, 1998, as a direct result of Defendants' discrimination and refusal to accommodate Plaintiffs disabilities, Plaintiff suffered a severe industrial injury that has prevented her from returning to work. Because of Defendants' discriminatory practices, Plaintiff was forced to walk a distance in excess of her physical capabilities. As a result, Plaintiff was injured and suffered physical and emotional injuries.

"15. As a consequence of Defendants' discrimination, Plaintiff suffered physical injuries, which included a broken right fibula, tibia, and ankle, as well as bruising and swelling in her left leg. As a result of these injuries, Plaintiff had to undergo a series of surgeries.

"16. Plaintiff became substantially limited in her daily life activities as a result of these injuries. Plaintiff is unable to return to work due to the physical and emotional injuries she suffered because of the Defendants' discrimination.

"17. On January 13, 1999, Defendants offered to provide Plaintiff the reasonable accommodation she requested. Since this offer was after Plaintiffs severe industrial injury on December 21, 1998, Plaintiff was not able to accept Defendants' offer at that time.

"18. On April 6, 1999, Plaintiff received a right to sue letter from the Department of Fair Employment and Housing relating to her disability discrimination complaint.

"19. Defendants discriminated and retaliated against Plaintiff based on her disability. Defendants refused to provide her a reasonable accommodation, when such accommodations had been made for the other employees, and this denial caused Plaintiff severe physical and emotional injury. Defendants created an unbearable and hostile work environment by singling out Plaintiff, telling Plaintiff to just retire when she would request an accommodation, and circulating an inflammatory and libelous e-mail to at least 47 employees impugning Plaintiff. Defendants failed to reasonably accommodate Plaintiffs known disability and this directly led to her December 21, 1998 injury. Defendants limited, segregated or classified the Plaintiff in a way that adversely affected her opportunities for employment. Defendants also excluded or otherwise denied equal jobs or benefits or opportunities to the Plaintiff as a qualified individual because of known disabilities of the Plaintiff.

"20. As a result of the employment discrimination as above alleged, Plaintiff has suffered general damages in the form of pain and suffering physical injury, emotional distress, humiliation and embarrassment. Plaintiff is therefore requesting general damages in an amount to be proven at time of trial.

"21. As a result of the above-mentioned employment discrimination, Plaintiff has suffered special damages in that Plaintiff has lost wages and has incurred other damages and costs in an amount to be proven at the time of trial."

The trial court sustained defendants' demurrer without leave to amend and entered judgment dismissing plaintiffs complaint. Plaintiff timely filed a notice of appeal.

DISCUSSION

I Standard of Review

"On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed `if any one of the several grounds of demurrer is well taken. [Citations.]' However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.]" (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967, 9 Cal. Rptr.2d 92, 831 P.2d 317.)

"If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. `[W]e are not limited to plaintiffs' theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have ... long since departed from holding a plaintiff strictly to the "form of action" he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.' [Citations.]" (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39, 77 Cal.Rptr.2d 709, 960 P.2d 513, italics added.)

II

Plaintiff Has Pleaded a Valid Cause of Action for Damages Caused by an Unlawful Employment Practice Under the FEHA.

Plaintiff contends she has stated a cause of action for damages under the FEHA because defendants engaged in an unlawful employment practice that caused her damage.

Plaintiff relies on subdivision (m) of Government Code section 12940.¹ (All further statutory references are to the Government Code unless otherwise indicated.) Section 12940 provides in relevant part as follows:

"It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:

"[¶] ...[¶]

"(m) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an...