Guatemala v. Regus Management Group CA2/2 ( 2023 )

Filed 8/25/23 Guatemala v. Regus Management Group CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
VIVIRIANA GUATEMALA, B316724
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No.
19STCV07112)
REGUS MANAGEMENT GROUP,
LLC, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles
County. Dennis J. Landin, Judge. Affirmed.
Gusdorff Law, Janet Gusdorff; Reisner & King, Adam Reisner,
Tessa King and Greg Taylor for Plaintiff and Appellant.
Shankman Leone, Kendra D. Presswood; Quarles & Brady, E.
Joseph Connaughton and Ashley D. Kearney for Defendants and
Respondents.
_____________________________________
Viviriana Guatemala appeals the judgment in her employment
suit in favor of respondents Regus Management Group, LLC (Regus)
and Erika Deras. On de novo review, we uphold the order sustaining
demurrers without leave to amend because appellant’s Fair
Employment and Housing Act (FEHA) claims are untimely. We also
conclude that summary judgment was properly granted on appellant’s
whistleblower and wrongful termination claims. She did not report
illegal activity, did not show a disability affecting a major life activity,
and did not notify Regus of a disability or request an accommodation.
At most, the evidence shows appellant was terminated because she was
constantly late for work. We affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Appellant’s Complaint
On February 28, 2019, appellant filed a lawsuit alleging FEHA
violations and other claims arising from the termination of her
employment at Regus on March 9, 2017. She applied for and received a
right-to-sue letter in February 2019. Respondents told appellant that
her statutory causes of action are time-barred and offered to waive
costs as to those claims if she dismissed them voluntarily. Appellant
refused to dismiss the claims.
Appellant’s third amended complaint (TAC) is the operative
pleading.1 She alleges that in 2016, she informed her supervisor,
Deras, that she has panic attacks and anxiety. In 2017, when
appellant told Deras that she was post-operatively restricted to lifting
items under five pounds, Deras replied, “Fine, I’ll do it myself.” Over a
two-week period, Deras would “leer” and “yell and scream” at appellant
because of her disability. Appellant claims Deras used appellant’s
company credit card to “embezzle” company funds by purchasing lunch
and personal items.
1 The TAC contains five FEHA claims (harassment,
discrimination and retaliation based on a disability, failure to
accommodate or engage in the interactive process); a family rights act
claim; a whistleblower claim; and claims of emotional distress and
wrongful termination in violation of public policy.
2
On March 9, 2017, Regus terminated appellant’s employment.
When appellant protested, Human Resources (HR) asked her to provide
proof that medical leave affected the decision to terminate. Though she
complained to several managers, Regus did not make a good faith effort
to determine if her absences were protected.
In February 2019, counsel demanded that Regus reinstate
appellant’s employment. Regus did not take corrective measures or
reinstate appellant. She asserts that respondents were motivated by
her actual or perceived disabilities and need for accommodations and
medical leave.
Respondents’ Demurrers
Respondents demurred to the TAC. They argued that appellant’s
FEHA claims are barred by a one-year limitation period; other claims—
for emotional distress, harassment, whistleblowing, and retaliation—
fail as a matter of law. Respondents asked the court to sustain
demurrers without leave to amend and award sanctions.
In opposition, appellant asserted that her FEHA causes of action
are preserved by the “continuing violations doctrine.” She believed she
sufficiently pleaded outrageous conduct; severe and pervasive
harassment; retaliation; and a whistleblower violation.
The court sustained demurrers to appellant’s FEHA claims
without leave to amend, finding that she did not make a timely
administrative claim or show continuing violations to toll the
limitations period. The court sustained demurrers to appellant’s
intentional infliction of emotional distress claim because she did not
allege outrageous conduct. 2 It overruled demurrers to her
whistleblower claim.
Motion For Summary Judgment
Respondents asked the court to summarily adjudicate appellant’s
remaining claims of a whistleblower violation and wrongful
termination in violation of public policy. Appellant countered with her
2 Appellant’s brief does not discuss the ruling sustaining
demurrers to her emotional distress claim.
3
own motion for summary adjudication of her wrongful termination
claim.
The record shows that appellant began working for Regus in 2015
as a community service representative. After being promoted to
manager in July 2016, she was responsible for running the day-to-day
operations of a business center, greeting customers, managing
complaints, reviewing accounts, ensuring proper billing, and overseeing
employees. She reported to Deras.
Soon after her promotion, appellant was repeatedly late to work.
Deras moved appellant’s start time from 8:30 to 9:00 a.m., after
appellant said it was hard to wake up because she stays up late at
night, but appellant continued to arrive late. On July 18, 2016, Deras
reminded appellant to be on time; appellant wrote, “I understand and
accept any consequences that may follow due to tardiness, which may
include a write up. I take full responsibility.” Appellant did not cite a
medical reason for her tardiness or claim a disability.
On August 11, 2016, appellant wrote to Deras that anxiety
caused her “to pull over to the side for a few minutes.” Appellant
acknowledged being warned about tardiness, and “understand[s] and
accept[s] responsibility for disciplinary action.” Deras did not perceive
appellant’s email as a claim of medical disability or request for an
accommodation. Appellant did not tell Deras she had a disability.
Appellant was placed on a performance improvement plan (PIP)
in August 2016, owing to excessive absenteeism, tardiness, and subpar
performance, despite being coached on punctuality and attendance.
She persistently arrived late in September and October 2016, but noted
that Deras told her to come in late on two days. Deras emailed
appellant at the end of September, asking, “Is there an issue on why
you’re not able to come in on time?” Appellant did not respond or claim
a medical disability.
Appellant was placed on a second PIP in October 2016, for
tardiness and unauthorized overtime, and warned that further
disciplinary action could lead to termination. She asserts that she did
not receive the second PIP and Deras forged her signature on it. She
4
continued to be tardy from October 2016 into January 2017. Her panic
attacks increased to sometimes three or four times per week. The
record does not show that she told anyone at Regus that she panicked
frequently or that it caused her tardiness or affected her ability to
work.
Appellant texted Deras on January 5, 2017, to say she had
anxiety that was “a little worse lately” but did not say she was unable
to work. On January 19 to 20, 2017, Deras told appellant to “go home”
after appellant texted that she felt “like crap.” Appellant did not
specify why she felt ill, but the exchange suggests a communicable
illness—not anxiety—because Deras clarified that “I don’t want to get
sick and I know that [a coworker] doesn’t want to get sick.”
Appellant testified that she felt “anxious and depressed” and
“wanted to take a few days off.” She agrees that she was repeatedly
reprimanded for tardiness and needed to be on time. Her tardy
arrivals “could have been [because] I was having a panic attack, and I
pulled over to the side until I could calm down.” She did not seek
psychological counseling.
Appellant was placed on a third PIP for excessive tardiness on
January 11, 2017, and warned that she could be terminated. She
asserts that she did not receive the third PIP and someone forged her
signature on it. On January 25, 2017, appellant was counseled in
person. Later that day, she texted Deras asking if she could work
fewer hours without losing her benefits “because insurance is so
important for me with all my medical things going on.” Deras replied
that appellant could work as an associate but appellant was not
interested. Appellant wrote that the employee handbook indicated that
she could have a reduced schedule, keep her same pay rate and retain
benefits under the Family Medical Leave Act (FMLA) for a “serious
health condition.” Deras did not respond to appellant’s text, forward it
to HR, or help her apply for an accommodation. Deras testified that
appellant had to take the matter up with HR.
5
Appellant admittedly did not contact HR to request medical leave
for anxiety.3 However, two days later, on January 27, 2017, she asked
Regus’s benefits coordinator about taking medical leave for cosmetic
enhancement surgery. The coordinator provided a FMLA flyer and told
her to contact Regus’s medical leave administrator. Although appellant
did not follow proper procedures, she received 13 days off for the
surgery. A doctor authorized her return to work on February 22; she
was restricted to lifting less than five pounds.
After returning, appellant continued to be tardy to work and
claim unauthorized overtime. She was counseled in February and
March 2017. She points to a text message on February 3, 2017, saying
she had to pull over on the way to work due to a panic attack.
On March 8, 2017, appellant asked Deras not to use appellant’s
company credit card for food delivery, adding, “I do not want to get in
trouble for something that is not covered.” Appellant did not accuse
Deras of violating any law.4 Regus does not approve of personal use of
its cards but it is not a problem if the charge is reimbursed. In a
declaration, appellant avers that she believed Deras was violating the
law. This belief was not communicated to respondents.
On March 9, 2017, HR manager Jennifer Baines informed
appellant that her employment was terminated for violating Regus’s
3 At oral argument, appellant claimed that she did not report her
anxiety to HR because Deras said “they would think that I wasn’t
deemed fit to be a manager.” The record is clear, however, that Deras
did not view appellant’s anxiety to be a disability and that it did not
affect her ability to do her work. Moreover, it appears that appellant
did not follow Deras’s claimed advice because she did contact HR to
request leave for cosmetic surgery and had also communicated to HR
by e-mail or text message that she had an anxiety attack on the way to
work.
4 Appellant cites page 1525 of the clerk’s transcript to support
her claim that she accused Deras of violating the law. The citation
shows exactly the opposite: When asked at deposition “what did you
say to [Deras] about violating the law,” she answered, “Specifically as
to the law, nothing.”
6
attendance policy. Her tardiness, not her performance at work, led to
the termination. When appellant protested that she was allowed to
arrive late and being retaliated against, Baines gave appellant one day
to document her claims. Appellant lacked access to her computer to
obtain documents.
Time records show that appellant was late to work over 100 times
in a one-year period.5 Company policy limits employees to three tardy
arrivals in 30 days or nine tardy arrivals in a year. Appellant listed
instances in which she informed Deras that she was anxious while
driving to work and had to pull over for several minutes, and days on
which Deras allowed her to clock in late or asked her to do so.
Regus’s HR did not receive a request for accommodation, though
it knew of an isolated incident of anxiety. HR does not investigate an
employee who reports an incident of anxiety, unless there is a chronic,
disabling health condition and request for accommodation. On several
occasions, appellant acknowledged her tardiness, took responsibility for
it, and accepted discipline. She was familiar with the process for
seeking medical leave because she secured leave for cosmetic surgery.
In post-termination communications to Baines, appellant
complained that Deras harassed and bullied her; she felt singled out for
criticizing unethical business practices. Appellant did not document
these claims or provide details. Regus did not change its decision to
terminate appellant’s employment. On March 18, 2017, appellant told
HR she was experiencing hardship due to her termination and would
be unable to pay for doctors.
The trial court granted summary judgment for respondents. It
found no evidence to support appellant’s claim that respondents
retaliated because she made whistleblower or FEHA claims and no
evidence of a violation of public policy. The court entered judgment for
respondents and awarded costs.
5 HR sent appellant a list showing she clocked in late on 28 of 29
days in June to July 2016; on 30 of 37 days in July to September 2016;
and on 70 days between September 2016 and March 2017.
7
DISCUSSION
1. Ruling on Demurrer
An intermediate order sustaining a demurrer is reviewable on
appeal from the final judgment. (Jennings v. Marralle (1994) 8 Cal.4th
121, 128.) A demurrer tests the sufficiency of the pleading as a matter
of law. (City of Chula Vista v. County of San Diego (1994) 23
Cal.App.4th 1713, 1718.) Review is de novo, accepting the truth of
material facts properly pleaded in the operative complaint, but not
contentions, deductions, or conclusions of fact or law. (Boshernitsan v.
Bach (2021) 61 Cal.App.5th 883, 889.)
Appellant asserts multiple causes of action under FEHA. FEHA
requires that an employee “ ‘exhaust the administrative remedy
provided by the statute by filing a complaint with the Department of
Fair Employment and Housing (Department) and must obtain from the
Department a notice of right to sue in order to be entitled to file a civil
action in court based on violations of the FEHA.’ ” (Morgan v. Regents
of University of California (2000) 88 Cal.App.4th 52, 63 (Morgan).)
When Regus terminated appellant in 2017, FEHA read, “No
complaint may be filed [with the Department] after the expiration of
one year from the date upon which the alleged unlawful practice or
refusal to cooperate occurred.” (Gov. Code, former § 12960, subd. (d).)
The limitations period in wrongful termination cases—including FEHA
claims—“begins to run on all the alleged causes of action on the date
employment actually is terminated.” (Romano v. Rockwell Internat.,
Inc. (1996) 14 Cal.4th 479, 483–484 (Romano).)
Demurrers are properly sustained if untimeliness plainly appears
on the face of the complaint. (Committee for Green Foothills v. Santa
Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; Doe v. Roman
Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 960.)
Regus terminated appellant’s employment in March 2017. Appellant
concedes she “filed her FEHA complaint more than one year after she
was terminated.” On its face, the TAC shows she missed the statutory
deadline.
8
To avoid the problem posed by filing her complaint a year late,
appellant asserts the continuing violations doctrine. It provides that
“an employer is liable for actions that take place outside the limitations
period if these actions are sufficiently linked to unlawful conduct that
occurred within the limitations period.” (Yanowitz v. L’Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1056; Blue Fountain Pools & Spas Inc. v.
Superior Court (2020) 53 Cal.App.5th 239, 250.)
The doctrine applies when an employee is discriminated against
over a long period. The misconduct must (1) be similar in kind,
(2) have occurred with reasonable frequency, and (3) not have acquired
a degree of permanence. (Richards v. CH2M Hill, Inc. (2001) 26
Cal.4th 798, 823.) “[A] ‘ “. . . ‘. . . systematic policy of discrimination is
actionable even if some or all of the events evidencing its inception
occurred prior to the limitations period.’ ” ’ ” (Accardi v. Superior Court
(1993) 17 Cal.App.4th 341, 349.) A violation may continue until the
employer “mak[es] clear to the employee in a definitive manner” that it
will not accede to demands to cease its misconduct, “thereby
commencing the running of the statute of limitations.” (Richards, at
pp. 823–824.)
In Accardi an employee alleged a hostile work environment from
1980 to 1989; additional workplace discrimination from 1989 to 1991
potentially brought the 1980 to 1989 acts within the limitations period.
(Accardi v. Superior Court, supra, 17 Cal.App.4th at pp. 349–350
[plaintiff subjected to a decade-long campaign of abuse at a police
department based on her gender].) The doctrine also applied to
discrimination and harassment that occurred continuously from 2013
until the employee was terminated in 2018. (Wallis v. Greyhound
Lines, Inc. (C.D. Cal. 2022) 2022 U.S. Dist. LEXIS 61059 *11.)
Cases applying the continuing violations doctrine allow old
violations to be brought into play if misconduct continued throughout
employment. During the period of continuing unlawful conduct, the
employee’s claim may not accrue “ ‘ “until a reasonable person would be
aware that his or her rights have been violated.” ’ ” (Morgan, supra, 88
Cal.App.4th at p. 65.) However, “ ‘a continuing violation claim will
9
likely fail if the plaintiff knew, or through the exercise of reasonable
diligence would have known, [he] was being discriminated against at
the time the earlier events occurred.’ ” (Ibid.)
Here, appellant invokes the doctrine not to redress wrongs
occurring in 2015, when she was hired, but to claim that Regus is
somehow liable for events occurring after she left employment on
March 9, 2017. When she complained to Regus’s HR department, it
wrote on March 28, 2017, “the decision to terminate your employment
with Regus was based strictly on your continued violation of the
tardiness policy” but HR would “continue to look into the allegations
that you have made against your supervisor.” This is Regus’s last
communication to appellant. The next event cited in the TAC is her
2019 demand to be reinstated.
The court instructed appellant to allege what actions, if any, she
took to pursue her claims. She alleges that she complained about
unlawful treatment to a manager and two supervisors. One said “he
would speak with someone from the company.” Another gave appellant
“the impression that he understood she was targeted and wrongfully
terminated and would help.” From this, she “understood that these
supervisors would take efforts to investigate her complaints and get her
reinstated to her former position at Regus.”
Because appellant cites no dates in her TAC, we cannot tell if her
conversations with supervisors occurred one hour, one day, one week,
one month or one year after she was fired. When, as here, untimeliness
appears on the face of the complaint, the plaintiff must allege facts
showing she has met the statute of limitations. (County of Alameda v.
Superior Court (1987) 195 Cal.App.3d 1283, 1286–1287.) “Facts”
include relevant dates. Her post-termination conversations with
supervisors were friendly, not “similar in kind” to the abuse allegedly
inflicted by Deras. (Richards v. CH2M Hill, Inc., supra, 26 Cal.4th at
p. 823.)
Appellant did not meet her burden of alleging facts to meet the
statute of limitations. The limitations period began on the date her
employment ended. (Romano, supra, 14 Cal.4th at p. 484.) Regus’s
10
failure to rehire her “does not demonstrate a continuing violation.”
(Morgan, supra, 88 Cal.App.4th at p. 65.) Appellant does not allege
that she applied for a job at Regus after her 2017 termination.
Counsel’s demand for her reinstatement in 2019 does not resuscitate
claims that expired a year earlier. Appellant’s FEHA claims are barred
as a matter of law.
2. Ruling on Summary Judgment
The summary judgment order is reviewable after entry of
judgment. (Code Civ. Proc., § 904.1, subd. (a)(1); Bono v. Clark (2002)
103 Cal.App.4th 1409, 1431.) Review is de novo. Summary judgment
lies if “all the papers submitted show that there is no triable issue as to
any material fact and that the moving party is entitled to a judgment
as a matter of law.” (Code Civ. Proc., § 437c, subd. (c); Hartford
Casualty Ins. Co. v. Swift Distribution, Inc. 59 Cal. 4th 277, 286.) We
liberally construe evidence from the party opposing summary judgment
and resolve doubts in that party’s favor. (Hartford, at p. 286.) We
determine “whether the court’s ruling was correct, not its reasons or
rationale.” (Scheer v. Regents of University of California (2022) 76
Cal.App.5th 904, 913 (Scheer).)
a. Whistleblower Claim
Appellant alleged that Regus retaliated against her for
complaining about disability harassment, discrimination, retaliation,
and wage and hour violations.6 She was “terminated due to her
disabilities and related complaints.”
6 “An employer, or any person acting on behalf of the employer,
shall not retaliate against an employee for disclosing information, or
because the employer believes that the employee disclosed or may
disclose information, to a government or law enforcement agency, to a
person with authority over the employee or another employee who has
the authority to investigate, discover, or correct the violation or
noncompliance, . . . if the employee has reasonable cause to believe that
the information discloses a violation of state or federal statute, or a
violation of or noncompliance with a local, state, or federal rule or
regulation.” (Lab. Code, § 1102.5, subd. (b).)
11
Labor Code section 1102.5 “reflects the broad public policy
interest in encouraging workplace whistle-blowers to report unlawful
acts without fearing retaliation.” (Green v. Ralee Engineering Co.
(1998) 19 Cal.4th 66, 77; Scheer, supra, 76 Cal.App.5th at p. 913.) It
“prohibits employers from retaliating against employees for ‘disclosing
information’ concerning suspected violations of the law either
internally or to government or law enforcement agencies.” (People ex
rel. Garcia-Brower v. Kolla’s, Inc. (2023) 14 Cal.5th 719, 720–721
(Kolla’s) [employee who complained to her employer about unpaid
wages was promptly fired and threatened with deportation].)
The evidence shows that appellant did not report FEHA
violations to Regus’s HR department while employed. She claimed
misconduct “[d]uring the termination conversation” on March 9, 2017.
The trial court found it is “undisputed” that appellant did not complain
until after termination. Regus could not “retaliate” for reported FEHA
violations absent proof appellant made such reports.
Appellant claims she was terminated in retaliation for reporting
that Deras used a company credit card for personal purchases.
Appellant testified that while she was on medical leave, Deras used
appellant’s credit card. Appellant complained to Deras that she used
the card “to buy lunch for yourself.” This does not amount to an
accusation of illegality. Appellant did not tell Regus that Deras
“embezzled” funds or report a violation of state law; instead, she wrote
that the transactions were not hers and asked that they be reallocated.
The statute “excludes from whistleblower protection disclosures that
involve only disagreements over discretionary decisions, policy choices,
interpersonal dynamics, or other nonactionable issues.” (Kolla’s, supra,
14 Cal.5th at p. 734.)
The Labor Code first “places the burden on the plaintiff to
establish, by a preponderance of the evidence, that retaliation for an
employee’s protected activities was a contributing factor in a contested
employment action. . . . Once the plaintiff has made the required
showing, the burden shifts to the employer to demonstrate, by clear
and convincing evidence, that it would have taken the action in
12
question for legitimate, independent reasons even had the plaintiff not
engaged in protected activity.” (Lawson v. PPG Architectural Finishes,
Inc. (2022) 12 Cal.5th 703, 717–718, citing Labor Code section 1102.6.)
A contributing factor is “ ‘ “ ‘any factor, which alone or in connection
with other factors, tends to affect in any way the outcome of the
decision.’ ” ’ ” (Lawson, at p. 714.)7
Appellant did not show that retaliation for protected activities
was a contributing factor in her termination. She was repeatedly
warned of her deficient attendance and never once claimed she was
being punished for having a disability. She did not blow any whistles
about FEHA violations or other violation of law. Because she was not a
whistleblower, Regus could not “retaliate” for complaints she did not
make.
Deras’s belief that appellant might qualify for FMLA (if she
applied for it) does not amount to a belief that appellant might disclose
a violation of law. Appellant knew her rights because she cited the
Regus employee handbook to Deras. Regus’s benefits coordinator sent
FMLA information to appellant, who promptly sought leave for
cosmetic surgery, not for a disability. When appellant mentioned
FMLA to Deras in a late-night missive, she did not cite anxiety (or any
other illness) as a disabling health condition: She just wanted to work
fewer hours for full pay, for unspecified reasons.
To qualify for leave, an employee must show a “serious health
condition that makes [her] unable to perform the functions of [her]
position” or a medical disability. (Gov. Code, § 12945.2, subd. (b)(5)(C).)
No one denied appellant medical leave for a serious condition: She did
not report one. Instead, she disclosed a few moments of anxiety over
the course of a year. Being told to “stay home” on a day when she was
feeling ill did not give Regus notice of a serious health condition.
(Gibbs v. American Airlines (1999) 74 Cal.App.4th 1, 7 [employee’s
7 Lawson was decided after the judgment in this case. Though
the parties and the court were not guided by Lawson, this does not
mandate reversal because appellant offered no evidence of retaliation
for whistleblowing.
13
report of cold or flu-like symptoms, or that she “ ‘wasn’t feeling well’ ”
did not give notice of a serious condition].)
“None of this would have alerted [the employer] to the fact that
[the employee] was requesting leave to take care of a serious health
condition that made [her] unable to perform [her] job functions.”
(Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 455
[employer not on notice when an employee told a supervisor about
migraines].) Appellant did not show that a FMLA claim contributed to
her termination. The record shows only she was terminated for
constant, unexplained tardy arrivals at work. When appellant
acknowledged her tardiness, in writing, she took responsibility and
accepted discipline. Respondents had no reason to believe she had a
serious health condition.
b. Wrongful Termination in Violation of Public Policy
Appellant alleged that she was terminated in violation of public
policy for her actual or perceived disability, and/or her legally protected
activities of protesting harassment and discrimination, and
whistleblowing. A claim for wrongful termination in violation of public
policy must be tethered to constitutional or statutory provisions; inure
to the benefit of the public not just the interests of the individual; be
well established at the time of discharge; and be fundamental and
substantial. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–
890.) Appellant tethers her claim to FEHA.
On appeal, appellant focuses a claimed link between her
tardiness and her disabilities. She claims that respondents waived any
challenge to her status as “disabled” because they did not raise it as an
affirmative defense. Proving a disability is part of a plaintiff’s prima
facie case under FEHA. (Arteaga v. Brink’s, Inc. (2008) 163
Cal.App.4th 327, 344–345.) It is not an affirmative defense.
Appellant’s cosmetic surgery is not a “physical disability” under
FEHA. (Gov. Code, § 12926, subd. (m) [defining physical disability as a
disease, disorder, condition, disfigurement or anatomical loss affecting
a body system and limiting a major life activity]; 29 C.F.R. § 825.113(d)
14
[cosmetic treatment is not a serious health condition].) Her claim of
being put-upon following cosmetic surgery is not viable.
A “mental disability” under FEHA includes a “mental or
psychological disorder or condition limits a major life activity if it
makes the achievement of the major life activity difficult.” (Gov. Code,
§ 12926, subd. (j).) Anxiety is not a disability if it causes brief
impairment and does not limit a major life activity. (Muller v.
Automobile Club of So. Cal. (1998) 61 Cal.App.4th 431, 445–446,
overruled on other grounds in Colmenares v. Braemar Country Club,
Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.) Feeling stressed or anxious by
oversight at work is not a disability. (Higgins-Williams v. Sutter
Medical Foundation (2015) 237 Cal.App.4th 78, 84–86.)
Appellant did not show any impairment affecting a major life
activity. She did not present expert testimony or medical records to
support her claim of disability. She sent a few messages to Deras over
the course of a year about anxiety. Deras explicitly asked appellant if
there was an issue that prevented her from arriving on time, but
appellant did not respond at all, let alone claim a disability. On
appeal, she does not argue that her anxiety, depression, backache or
reflux disorder limited a major life activity.
At most, appellant claimed that anxiety caused her to pause
during her commute. It did not prevent her from leaving the house,
meeting clients, or engaging in the regular activities of life. She chose
not to avoid tardiness by leaving home 15 minutes early, in case of a
possible panic attack while commuting.8
When Deras moved appellant’s start time from 8:30 to 9:00, she
was still late. Deras suggested part-time employment, but appellant
wanted full pay and benefits for part time work. (Criado v. IBM Corp.
(1st Cir. 1998) 145 F.3d 437, 444–445 [employer need not accommodate
a disability that is “prolonged or perpetual”]; Hanson v. Lucky Stores,
Inc. (1999) 74 Cal.App.4th 215, 226 [“finite leave” is reasonable if the
employee can fully perform the job after the leave].)
8 She testified that panic attacks lasted 10 to 15 minutes.
15
Appellant did not seek mental health counseling and presented
no evidence that she can ever be on time. An employer need not “ ‘wait
indefinitely for an employee’s medical condition to be corrected.’ ”
(Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at pp. 226–227.)
Because appellant’s job required interacting with clients at a service
center, she could not arrive whenever she felt like it. (See Samper v.
Providence St. Vincent Med. Ctr. (9th Cir. 2012) 675 F.3d 1233, 1237–
1238 [listing cases in which irregular attendance compromises job
performance].)
Appellant’s situation is not comparable to the one described in
Humphrey v. Memorial Hospitals Ass’n. (9th Cir. 2001) 239 F.3d 1128(Humphrey).) In Humphrey, a medical transcriber was constantly late
because she spent hours getting ready for work; she was diagnosed
with obsessive compulsive disorder. Her psychiatrist felt working at
home would be an accommodation, and some people in the plaintiff’s
job did so. Her request for this accommodation was summarily (and
improperly) denied based on prior disciplinary warnings for tardiness
before her OCD diagnosis. Then she was fired.
Appellant does not have a diagnosed disability. No psychiatrist
informed her employer, before termination, of a disability that “ ‘is
directly contributing to her problems with lateness’ ” but can be
treated, though she could require medical leave “ ‘until we can get the
symptoms better under control.’ ” (Humphrey, supra, 239 F.3d at pp.
1130–1131.)
Appellant failed to show a disability that prevented her from
working, as a matter of law. She did not even claim disability until
after termination. She lists nine days when Deras approved a late
arrival; seven days when she mentioned a panic attack; and two days
when Deras told her to come in late, from 2016 to 2017.9 Appellant’s
9 These are documented events, unlike the “over 50”
undocumented instances that appellant claimed at deposition. An
employer need not speculate about an employee’s mental health if no
problem is disclosed.
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messages about a panic attack did not state that they caused her to be
late.
Even if the 18 documented instances are subtracted from the
100-plus late arrivals, it far exceeds the allowable nine tardy arrivals
per year. Respondents could not intuit, from the handful of panic
attacks she reported while commuting, that appellant had a disability
that limited a major life activity, given that her ability to work, once
she arrived, was unaffected.
3. Costs Award
Appellant contends that respondents are not entitled to costs,
despite being the prevailing parties, because costs are not a matter of
right in FEHA cases. Government Code section 12965 governs cost
awards in FEHA actions. It requires the trial court to determine if an
unsuccessful FEHA plaintiff “brought or continued litigating the action
without an objective basis for believing it had potential merit.”
(Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97,
100.) Williams does not apply here.
Costs were awarded after the court decided appellant’s wrongful
termination and whistleblower claims on summary judgment. Code of
Civil Procedure section 1032 governs cost awards on non-FEHA claims
litigated after the court sustained demurrers to the FEHA claims.
(Moreno v. Bassi (2021) 65 Cal.App.5th 244, 261–262.) These costs
were incurred regardless of the court’s dismissal of appellant’s
untimely FEHA claims.
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DISPOSITION
The judgment is affirmed. Respondents are entitled to recover
their costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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