Dudley v. Department of Transp.

• Decision Date: 28 June 2001
• Docket Number: No. C036154.,C036154.
• Citation: 90 Cal.App.4th 255,108 Cal.Rptr.2d 739
• Court: California Court of Appeals Court of Appeals
• Parties: Carla R. DUDLEY, Plaintiff and Appellant, v. DEPARTMENT OF TRANSPOTATION, Defendant and Respondent

108 Cal.Rptr.2d 739

90 Cal.App.4th 255

Carla R. DUDLEY, Plaintiff and Appellant, v. DEPARTMENT OF TRANSPOTATION, Defendant and Respondent

No. C036154.

Court of Appeal, Third District.

June 28, 2001.

Martinez-Senftner Law Firm, Gloria P. Martinez-Senftner, Sacramento, and Jonathan Regent Tyrell, for Plaintiff and Appellant.

Bruce A. Behrens, Chief Counsel, Breland C. Gowan, Deputy Chief Counsel, Daniel Muallem, Cheryl D. McNulty, Sacramento, and Navtej S. Bassi, for Defendant and Respondent.

NICHOLSON, J.

Plaintiff Carla R. Dudley (hereafter Dudley) appeals from a judgment on the pleadings in favor of her former employer, defendant Department of Transportation (hereafter Caltrans). Dudley contends her complaint states, or could be amended to state, facts sufficient to constitute a cause of action against Caltrans for retaliating against her for taking medical leave, in violation of the Moore-Brown-Roberti Family Rights Act (Gov.Code, §§ 12945.1, 12945.2, hereafter CFRA). We agree that Dudley's complaint could be amended to state a retaliation claim under CFRA and accordingly reverse the judgment.

PROCEDURAL HISTORY

In December 1997, Dudley filed a complaint in federal court alleging, among other things, disability discrimination by her former employer, Caltrans, in violation of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq, hereafter ADA) and the California Fair Employment and Housing Act (Gov.Code, § 12900 et seq, hereafter FEHA). Dudley asserted she was diagnosed with diabetes in August 1996 and that Caltrans had failed to reasonably accommodate her disability, resulting in the termination of her employment in June 1997.

In March 1999, the federal district court granted summary judgment in favor of Caltrans on Dudley's ADA claim. The court concluded that because her frequent absences from work Dudley could not have performed the essential functions of her job as a supervisor even with reasonable accommodation and therefore could not prevail on her claim of disability discrimination under the ADA. The court declined to exercise supplemental jurisdiction over Dudley's state law claim of disability discrimination under FEHA. Dudley appealed the judgment against her on her ADA claim to the United States Court of Appeals for the Ninth Circuit.

Meanwhile, in April 1999, Dudley pursued her FEHA claim in state court by filing a complaint against Caltrans for "Violation of the California Fair Employment and Housing Act."¹ In that complaint, Dudley reiterated the allegations she had made in federal court. As relevant here, Dudley alleged she had worked for Caltrans since approximately 1982 and had been promoted to supervisor in January 1996. In mid-1996, she began having health problems that required her to take time off for medical appointments, testing, and treatments. Her own supervisor, James Beck, began harassing her regarding documentation of her absences. In August 1996, she was placed on "leave control," criticized for taking time off, and forced to report to a line worker regarding her attendance. According to Dudley, she was forced to account for each day of her illness in a manner not required of other employees and was threatened with disciplinary action if she failed to meet the strict requirements placed on her. Around this same time, Dudley was diagnosed with diabetes.

Dudley went on to allege that due to the ongoing harassment and discrimination against her because of her diabetes and her need for time off, she was forced to take several medical leaves of absence in an attempt to control her diabetic condition, which was being aggravated by the stressful working conditions. Following two of these leaves, she was served with Notice(s) of Adverse Action, which resulted in a salary reduction and 10-day suspension. According to Dudley, Caltrans refused to allow her to telecommute, which she had been allowed to do as late as May 1996. In addition, a request for an alternative work schedule that would have allowed her a day off during the week to schedule her medical appointments and diabetic teaching, though initially approved, was ultimately rejected, as was a request for a change of supervisor. In December 1996, Dudley went out on leave and did not return, despite repeated requests to return to a less stressful environment with a different supervisor. Eventually, Caltrans terminated Dudley's employment in June 1997 because of her absences.

In March 2000, the Ninth Circuit affirmed the judgment of the district court in favor of Caltrans on Dudley's ADA claim. The Ninth Circuit concluded that Dudley had failed to demonstrate she was qualified under the ADA because "no rational trier of fact could conclude Dudley would have been able to perform her duties while absent." Shortly thereafter, Caltrans moved for judgment on the pleadings in this action, asserting that under the doctrine of res judicata the federal court judgment against Dudley on her ADA claim precluded her from further litigating her claim of disability discrimination under FEHA. In opposing the motion, Dudley argued that a federal court summary judgment does not have preclusive effect. The trial court disagreed and granted the Caltrans motion "without leave to amend on the ground the complaint fails to state a cause of action as it is barred due to issue preclusion." The court subsequently entered a judgment of dismissal, from which Dudley appeals.

DISCUSSION

By not arguing otherwise, Dudley concedes on appeal that her cause of action for disability discrimination under FEHA was barred because of the preclusive effect of the federal court summary judgment on her ADA claim. (See, e.g., Acuna v. Regents of University of California (1997) 56 Cal.App.4th 639, 65 Cal.Rptr.2d 388.) She contends, however, that her complaint alleges, or could be amended to allege, a valid cause of action for retaliation in violation of CFRA. Caltrans contends Dudley "cannot assert a new theory of liability for the first time on appeal" and therefore is prohibited from arguing before this court that her complaint states, or could be amended to state, a cause of action under CFRA. Caltrans is mistaken.

"When a demurrer is sustained without leave to amend the petitioner may advance on appeal a new legal theory why the allegations of the petition state a cause of action." (20th Century Ins. Co. v. Quackenbush (1998) 64 Cal.App.4th 135, 139 fn. 3, 75 Cal.Rptr.2d 113.) This is so because of the general rule that "`a litigant may raise for the first time on appeal a pure question of law which is presented by undisputed facts.'" (B & P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 959, 230 Cal.Rptr. 192, quoting Hale v. Morgan (1978) 22 Cal.3d 388, 394, 149 Cal.Rptr. 375, 584 P.2d 512.) The same rule applies to a motion for judgment on the pleadings. "[A] motion for judgment on the pleadings is the functional equivalent of a general demurrer. ... Indeed, the only significant difference between the two motions is in their timing." (People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 691, 286 Cal. Rptr. 746.) Accordingly, an appellant challenging the granting of a motion for judgment on the pleadings "may change his or her theory on appeal [citation], and an appellate court can affirm or reverse the ruling on new grounds. [Citations.] After all, we review the validity of the ruling and not the reasons given." (B & P Development Corp. v. City of Saratoga, supra, 185 Cal.App.3d at p. 959, 230 Cal. Rptr. 192.)

Because the rules governing general demurrers apply here, the question before us is whether Dudley "has stated a cause of action under any possible legal theory." (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, 9 Cal. Rptr.2d 92, 831 P.2d 317.) Furthermore, it is an abuse of discretion to grant a motion for judgment on the pleadings without leave to amend "`if there is any reasonable possibility that the plaintiff can state a good cause of action.'" (Gami v. Mullikin Medical Center (1993) 18 Cal. App.4th 870, 876-877, 22 Cal.Rptr.2d 819, quoting Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852, 19 Cal.Rptr.2d 671.) In the context of a general demurrer, "[t]o meet the plaintiffs burden of showing abuse of discretion, the plaintiff must show how the complaint can be amended to state a cause of action. [Citation.] However, such a showing need not be made in the trial court so long as it is made to the reviewing court." (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386, 272 Cal.Rptr. 387; see Code Civ. Proc, § 472c.) "This rationale applies equally to the granting of a motion for judgment on the pleadings since it is treated as a demurrer for purposes of appeal." (Galligan v. City of San Bruno (1982) 132 Cal. App.3d 869, 876, 183 Cal.Rptr. 466.) Accordingly, we turn to the question whether Dudley's complaint states, or could be amended to state, facts sufficient to constitute a cause of action for retaliation in violation of CFRA.

CFRA is a portion of FEHA that provides "protections to employees needing family leave or medical leave." (Gibbs v. American Airlines, Inc. (1999) 74 Cal. App.4th 1, 6, 87 Cal.Rptr.2d 554.) "CFRA generally provides that it is unlawful for an employer to refuse an employee's request for up to 12 weeks of `family care and medical leave' in a year. (Gov.Code, § 12945.2, subd. (a).) An employer is also forbidden from discharging or discriminating against an employee who requests family leave or medical leave. (Gov.Code, § 12945.2, subd. (l).) `Family care and medical leave' includes `[l]eave because of an employee's own serious health condition that makes the employee unable to perform the functions of the position of that employee....' (Gov.Code, § 12945.2, subd. (c)(3)(C).) `Serious health condition' means `an illness, injury, impairment, or physical or mental condition that involves either of the following: [¶] (A)...