Filed 8/18/26 Alvarez v. Kaiser Foundation Health Plan CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MARI ALVAREZ, B334937
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 21STCV36048)
KAISER FOUNDATION
HEALTH PLAN, INC., et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Timothy Patrick Dillon, Judge. Affirmed.
Law Offices of David R. Denis, David R. Denis and
Armando M. Galvan for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Scott M. Klausner, Amy
E. Rankin; GBG, Amanda Bolliger and Christina C.K. Semmer
for Defendants and Respondents.
________________________
Mari Alvarez appeals from a judgment entered after the
trial court granted the motion for summary judgment filed by
Kaiser Foundation Health Plan, Inc., Kaiser Foundation
Hospitals, and Lu-Shonda Johnson (collectively, Kaiser).
In 2020, after Alvarez resigned from her employment at Kaiser,
she filed this lawsuit asserting causes of action under the
California Fair Employment and Housing Act (FEHA; Gov. Code,
§ 12900 et seq.)1 for disability discrimination, harassment,
retaliation, and related claims. Alvarez also alleged causes of
action for constructive discharge and intentional infliction of
emotional distress. The court granted summary judgment,
finding Alvarez had failed to demonstrate a triable issue of
material fact that she had been subject to an adverse
employment action. The court also found no triable issues of
material fact as to each of her causes of action. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Alvarez’s Employment at Kaiser and Kaiser’s Procedures for
Requesting Sick Leave
Alvarez started working at Kaiser in 1996 as a medical
assistant. She held several positions in different departments
over the years, and in April 2016 she became a claims processor
in the claims-intake department.
During the relevant time period (from 2017 to 2020), Kaiser
had several options available to employees who needed to take
time off work for medical reasons and/or doctor’s appointments.
One option was for an employee to take unpaid time off through
1 Further undesignated statutory references are to the
Government Code.
2
the Family Medical Leave Act of 1993 (FMLA; 29 U.S.C. §§ 2601-
2654) or the California Family Rights Act (CFRA; Gov. Code,
§ 12945.2). Alvarez acknowledged that Kaiser had a policy for an
employee to take time off to address a medical condition under
the FMLA or CFRA. The employee would need to have a doctor
fill out a certification form and then obtain approval from human
resources (HR) for the leave. However, once the leave was
approved, the employee could “call off” from work by calling the
Kaiser attendance line, with no prior notice. Alvarez understood
this type of leave could be taken in one continuous block or
intermittently over a period of time for “a day here [or] a day
there.”
Employees also had the option of taking time off as paid
sick leave. Time off for sick leave did not need to be scheduled or
approved in advance and could be used for pre-planned doctor’s
visits or unexpected sick days. To use sick leave, employees
would “simply call[] out” (by calling the attendance line) and
state they were taking sick leave for the day.
Employees could alternatively request time off using the
Time Off Request Tracking (TORT) system on a computer. When
requesting time off through the TORT system, an employee
would designate the purpose of the request, such as unpaid
personal time off or time off for a doctor’s appointment. If an
employee is requesting time off for a doctor’s appointment, the
employee can request unpaid or paid time off. An employee’s
request for time off for a doctor’s appointment is placed on an
“exception log” (also called the alternate calendar), not the
vacation calendar. However, a TORT system request, even for a
doctor’s appointment, can be denied if there is an operational
need, such as if too many employees are already scheduled to be
3
out on a given day. The TORT system was not used for requests
for sick leave or FMLA/CFRA leave requests.
B. Alvarez’s Requests for Time Off in 2017 and 2018
In 2017 Alvarez was diagnosed with anemia and
hemoglobin deficiency, which required periodic iron infusions. At
that time, Johnson was her supervisor. In July 2017 Alvarez
requested several days off through the TORT system for
treatments, but her request was denied. Alvarez emailed
Johnson on July 5, explaining the time off she requested for July
18 was for “treatments that are a medical necessity and affect my
livelihood.” She stated that if her TORT requests “continue to get
denied,” she would need to take “extended time and be on medical
leave” to receive the treatments. Further, she intended to have
her doctor complete “a Medical Family Leave request” in the
meantime. She added that she hoped Johnson “can work with”
her so she could go to her treatments and return to work the next
day after the side effects had subsided. Johnson responded
30 minutes later, stating that “[i]f the calendar is booked it is
protocol for the request to be denied.” But Johnson told Alvarez
to speak with her so they could “work something out.”
Johnson and Alvarez then spoke, and Johnson told Alvarez
that if Alvarez notified her that her TORT requests were for
infusions, Johnson would approve the time off. Alvarez sent a
follow-up email to Johnson stating: “I have re-requested my
TORT requests, [and] in the future, I will notify you of my
appointments if the calendar is full so that we can work
something out to get them approved.” Alvarez testified in her
deposition that she was satisfied with this outcome. Further,
Alvarez confirmed that she did not have any problems with
4
Johnson denying her time-off requests before the July 2017
request.
In July 2018 Alvarez submitted a TORT request for
three days off in August, but she was approved for only one day
and was “placed on the alternate calendar” for the other
two days. Alvarez notified Johnson of the denial and requested
that Johnson approve one of the two days that had been denied,
noting that only two people would be off that day. Johnson did
not approve the request, and Alvarez made a complaint to the
Kaiser complaint hotline. In September 2018 an HR employee
followed up with Alvarez regarding her complaint. According to
Alvarez’s declaration, Alvarez and the HR employee “agreed that
at this point [in September], the issue has passed and we would
consider the issue resolved about the time off [in August].”
Alvarez further stated that she believed her time off request was
denied because Johnson was “playing ‘favorites’” by giving the
available time off to a “black/African American” woman instead of
to Alvarez, who is “Hispanic/American.”2
In October 2018 Alvarez submitted a TORT request for
five days off in October and November for infusion appointments.
She was initially approved for only one and a half days.
However, she was able to attend all five appointments after she
submitted a doctor’s note and had two grievance meetings with
Johnson’s supervisor and union representatives. After the
grievance meetings, Johnson’s supervisor, Antronette Moore-
Mohead, told Alvarez she should apply for FMLA leave so that
2 Alvarez did not allege any claims based on her race,
ethnicity, or national origin.
5
she could attend her future infusion appointments without
needing to request leave through the TORT system.
Alvarez testified she had applied for personal time off
through the TORT system rather than requesting FMLA leave
because Johnson had “always approved” her time-off requests, so
Alvarez “never bothered asking for FMLA.” In addition, she did
not request to take sick days because “I just didn’t want to use
my sick time,” which was paid time off.
In December 2018 Johnson emailed Alvarez asking about a
day on which she had arrived late in November. Alvarez
responded that the tardy was “Workers Comp related.”3 Johnson
replied, “Please provide me the note releasing you to return or
indication that your time away was workers comp related, so I
can make sure I’m following the proper protocol for a worker’s
comp related matter.” Johnson copied someone from HR on the
email and asked her, “[C]an you please assist me with this case.
I have no record of a disability case. I know that I asked several
months ago to assist me in obtaining the workers comp records
for this employee but never received anything. I need to know if
this workers comp time is for an old case or a new case and how
I’m to handle it in the future.”
Alvarez believed Johnson’s denial of her time-off requests
was in retaliation for an incident in 2018 relating to a charitable
donation. Johnson had asked Alvarez to handle a donation of
school supplies to a school at which Johnson’s brother worked
3 Alvarez filed a workers compensation claim in 2010 based
on “cumulative injury and specific injuries” related to “collating
paperwork,” “sitting awkwardly at my desk while typing,” and
“stooping, bending down and hitting my right knee on an open
drawer.”
6
even though Kaiser had originally approved the donation to a
different school. Alvarez was concerned there might be a conflict
of interest and raised the issue with HR. Alvarez stated that
after this incident Johnson “became hostile” toward her and
“began her discrimination and retaliation . . . by among other
things, denying my TORT requests.”
Alvarez also believed she was not permitted to take on
certain roles with increased pay due in part to her disability. In
September 2017 Johnson informed Alvarez she could no longer be
a back-up lead for the department. In an email memorializing
their conversation, Johnson told Alvarez, “[Y]ou have a lot of
commitments as well and I don’t want to overwhelm you because
the lead role is a lot. Never said that your medical condition is
the reason you can’t be the lead. Said that with all your required
time away with other commitments and you need time off for
medical purposes it will be a lot and the expectation of the role is
very demanding as well.” In October 2018 Alvarez was asked by
a project manager to work on a temporary project, which would
have increased Alvarez’s pay, but Johnson did not approve
Alvarez working on the temporary project.
In December 2018 Alvarez was approved for intermittent
FMLA leave for up to three days per month until October 2019.
C. Alvarez’s 2019 Assignment to the Union and Subsequent
Resignation
In January 2019 Alvarez began a one-year position as a
contract specialist with her union. During this time Alvarez
remained a Kaiser employee but was not performing claims
processing duties, and her day-to-day supervisors were union
employees. Johnson was still responsible for processing Alvarez’s
7
time-off requests. At some point in early 2019 Alvarez requested
that another Kaiser employee, Allison Cahee, handle her time-off
requests. Moore-Mohead agreed to let Cahee handle Alvarez’s
time-off requests while Alvarez was assigned to the union
because Alvarez was not performing claims processing duties and
Johnson was on leave around that time.
In February 2019, although Alvarez had requested that
Cahee oversee her time-off requests, Johnson approved a TORT
request submitted by Alvarez with the notation, “Please provide
Workers Comp case information for future appts. proof prior to
approval.” Alvarez sent an email to HR attaching Johnson’s
notation to the approved time-off request, stating, “[Johnson] is
continuing with her harassment and retaliation . . . . [¶]
[Johnson] approved my request last minute . . . with
contingencies that are not Kaiser Policy related, just simply her
own demands.” Alvarez wrote that she had called HR and
confirmed that there “is NO HR policy that requires for me to
provide proof of a doctors appointment prior to an appointment.
I am only required to provide proof after an appointment. . . . [¶]
At this point, I feel that I am working under a hostile work
environment, where I am being harassed and retaliated against,
by [Johnson] continuously.” Alvarez later acknowledged that the
TORT approval from Johnson in February 2019 was the only
contact she had with Johnson in 2019 or 2020.
In August 2019 Alvarez took a leave of absence due to a
medical condition.4 In February 2020 Alvarez informed Kaiser
4 The record is not clear regarding the reason for Alvarez’s
leave of absence. She initially testified in her deposition that she
took leave due to “the harassment and retaliation and
discrimination I was receiving prior from [Johnson].” But
8
that her leave was extended until March 2020, at which point
Alvarez learned her time-off requests and leave paperwork would
again be handled by Johnson. Alvarez emailed Moore-Mohead to
request that Cahee continue handling her time-off requests.
Alvarez wrote, “Given our last incident[,] I would feel best; if
[Cahee] continue[s] to manage my time as per my request and
you granted the last time. [¶] I do not want any further
retaliation or discrimination by [Johnson] and I feel that would
alleviate some of my anxiety . . . .” Moore-Mohead declined
Alvarez’s request. In her declaration, Moore-Mohead explained
that she consulted with HR, and they collectively decided that
once Alvarez was again working as a claims processor, Johnson
should manage all aspects of Alvarez’s employment.
Alvarez’s FMLA leave was again extended to May 2020.
However, Alvarez did not return to work, instead resigning in
June 2020. Alvarez stated in her declaration that she was “forced
to resign” because “I could not get past that Johnson will always
try to look for a way to get me in trouble somehow or impact my
physical health, and all because she has resentment against me
[for consulting HR and being a union steward].” (Brackets in
original.) Alvarez continued, “I felt suicidal and severely
depressed.”
D. Alvarez’s Complaint
On October 19, 2020 Alvarez filed a complaint against
Kaiser Foundation Hospitals and related entities with the
Department of Fair Employment and Housing (DFEH) (now
Alvarez later stated in her deposition that she took FMLA leave
due to unspecified “chronic pain.”
9
called the Civil Rights Department), alleging violations of FEHA
and CFRA. Alvarez filed an amended complaint on
September 20, 2021, adding Johnson as a respondent. After
receiving a right to sue letter, Alvarez filed a complaint against
Kaiser on September 30, 2021, alleging causes of action for
(1) discrimination in violation of FEHA based on disability;
(2) harassment in violation of FEHA based on disability and
medical condition; (3) retaliation in violation of FEHA; (4) failure
to participate in the interactive process; (5) failure to provide
reasonable accommodation; (6) failure to prevent discrimination,
harassment, and retaliation; (7) violation of CFRA; (8) retaliation
in violation of Labor Code section 98.6; (9) retaliation in violation
of Labor Code section 1102.5; (10) constructive discharge; and
(11) intentional infliction of emotional distress.5
E. Kaiser’s Motion for Summary Judgment, or in the
Alternative, Summary Adjudication
On April 18, 2023 Kaiser filed an amended motion for
summary judgment, or in the alternative, summary adjudication.
In support of the motion Kaiser submitted deposition testimony,
declarations, and other evidence relating to Alvarez’s
employment, requests for time off, and resignation. Kaiser
argued, in part, that Alvarez’s discrimination, harassment, and
retaliation causes of action failed because any claims based on
conduct prior to January 1, 2019 were time-barred under the
5 Alvarez’s causes of action for harassment and intentional
infliction of emotional distress were alleged against all
defendants; the remaining causes of action were alleged only
against Kaiser Foundation Health Plan and Kaiser Foundation
Hospitals.
10
former one-year statute of limitations; Alvarez had not alleged
any adverse employment action that occurred after January 1,
2019; and Alvarez had not alleged conduct sufficiently severe to
constitute harassment. In addition, Alvarez had not alleged
intolerable working conditions that would support a finding of
constructive discharge, nor had she alleged extreme and
outrageous conduct to support a finding of intentional infliction of
emotional distress.
In opposition to the motion, Alvarez submitted
declarations, deposition testimony, and other evidence and
argued there were disputed questions of material fact whether
she was subjected to discrimination, harassment, retaliation, and
constructive discharge. Alvarez further argued her claims were
timely because they were subject to the continuing violations
doctrine.
F. The Trial Court’s Ruling
After a hearing, on November 6, 2023 the trial court
granted summary judgment in favor of Kaiser. The court ruled
Alvarez’s causes of action for discrimination; harassment;
retaliation; failure to prevent discrimination, harassment, and
retaliation; and violations of the Labor Code failed because
Kaiser did not engage in any unlawful conduct during the
“statutory time period” (after January 1, 2019). Further, the
continuing violation doctrine did not apply because there was no
adverse employment action after January 1, 2019, noting that
Alvarez argued she was passed over for a promotion and denied
the ability to work on a higher-paying temporary project, but
those actions were taken prior to January 1, 2019.
11
The trial court also determined that Alvarez’s claims for
failure to participate in the interactive process and to provide a
reasonable accommodation failed because Kaiser had
accommodated Alvarez’s need to take time off for medical
appointments and Alvarez could have taken sick leave or FMLA
leave. Likewise, the CFRA claim failed because Alvarez’s
requests for CFRA leave were granted, and therefore, there was
no adverse employment action. Finally, the court found Alvarez’s
constructive discharge and intentional infliction of emotional
distress claims failed because the undisputed evidence showed
Alvarez’s fears regarding future mistreatment were speculative
and her treatment was not extreme or outrageous as a matter of
law.
On November 27, 2023 the trial court entered judgment in
favor of Kaiser. Alvarez timely appealed.
DISCUSSION
A. Standard of Review
Summary judgment is appropriate only if there are no
triable issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618; Delgadillo v. Television Center, Inc. (2018)
20 Cal.App.5th 1078, 1085.) “‘“‘“We review the trial court’s
decision de novo, considering all the evidence set forth in the
moving and opposing papers except that to which objections were
made and sustained.”’ [Citation.] We liberally construe the
evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.”’”
(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347;
12
accord, Husman v. Toyota Motor Credit Corp. (2017)
12 Cal.App.5th 1168, 1179.) “‘[S]ummary judgment cannot be
granted when the facts are susceptible [of] more than
one reasonable inference . . . .’” (Husman, at p. 1180.)
In evaluating claims of discrimination under FEHA,
California courts apply the burden-shifting approach set forth in
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.
(Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 214; Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) The same
approach is applied in evaluating claims of retaliation under
FEHA and CFRA. (Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1042 (Yanowitz); Bareno v. San Diego
Community College Dist. (2017) 7 Cal.App.5th 546, 560 (Bareno).)
Under this approach, as applied in the summary judgment
or summary adjudication context, the employer has the initial
burden to present evidence that one or more elements of a prima
facie case of discrimination or retaliation is lacking, or the
employer acted for a legitimate, nondiscriminatory reason.
(Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663,
685 (Wawrzenski); Martin v. Board of Trustees of California State
University (2023) 97 Cal.App.5th 149, 162; Zamora v. Security
Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 32, 63.) A
legitimate, nondiscriminatory reason is one that is unrelated to
the prohibited bias and, if true, would preclude a finding of
discrimination or retaliation. (Guz v. Bechtel National, Inc.,
supra, 24 Cal.4th at p. 358.)
If the employer satisfies its initial burden, the burden
shifts back to the plaintiff to present evidence creating a triable
issue of fact showing the employer’s stated reason was a pretext
for unlawful animus in order to avoid summary judgment or
13
adjudication. (Wawrzenski, supra, 106 Cal.App.5th at p. 685;
Martin v. Board of Trustees of California State University, supra,
97 Cal.App.5th at p. 162; Zamora v. Security Industry Specialists,
Inc., supra, 71 Cal.App.5th at p. 32.) “The plaintiff’s evidence
must be sufficient to support a reasonable inference that
discrimination [or retaliation] was a substantial motivating
factor in the decision. [Citations.] The stronger the employer’s
showing of a legitimate, nondiscriminatory reason, the stronger
the plaintiff’s evidence must be in order to create a reasonable
inference of a discriminatory [or retaliatory] motive.”
(Featherstone v. Southern California Permanente Medical Group
(2017) 10 Cal.App.5th 1150, 1159; accord, Wawrzenski, at p. 685
[plaintiff must show that discriminatory animus “‘was a
“substantial motivating factor”’” for adverse employment action;
“[u]ltimately, ‘an employer is entitled to summary judgment if,
considering the employer’s innocent explanation for its actions,
the evidence as a whole is insufficient to permit a rational
inference that the employer’s actual motive was
discriminatory.’”].)
B. The Statute of Limitations for FEHA Claims and the
Continuing Violations Doctrine
Prior to January 1, 2020, “[a] plaintiff suing for violations
of FEHA ordinarily [could not] recover for acts occurring more
than one year before the filing of the DFEH complaint.”
(Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390,
1400 (Jumaane); see former § 12960, subd. (d).) Effective
January 1, 2020 this period was extended to three years.
(§ 12960, subd. (e)(5); Stats. 2019, ch. 709, § 1.) In enacting the
longer limitations period, the Legislature stated, “This act shall
14
not be interpreted to revive lapsed claims.” (Stats. 2019, ch. 709,
§ 3; see Quarry v. Doe I (2012) 53 Cal.4th 945, 955 [“legislative
enlargement of a limitations period does not revive lapsed claims
in the absence of express language of revival”].) Accordingly, any
FEHA claims that accrued before January 1, 2019 necessarily
lapsed by January 1, 2020 and are not revived by the enlarged
statute of limitations. (See Wawrzenski, supra, 106 Cal.App.5th
at p. 694.)
However, “when an employer engages in a continuing
course of unlawful conduct under the FEHA . . . the statute of
limitations begins to run, not necessarily when the employee first
believes that his or her rights may have been violated, but rather,
either when the course of conduct is brought to an end, as by the
employer’s cessation of such conduct or by the employee’s
resignation, or when the employee is on notice that further efforts
to end the unlawful conduct will be in vain.” (Richards v. CH2M
Hill, Inc. (2001) 26 Cal.4th 798, 823; accord, Aryeh v. Canon
Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192 [“The
continuing violation doctrine aggregates a series of wrongs or
injuries for purposes of the statute of limitations, treating the
limitations period as accruing for all of them upon commission or
sufferance of the last of them.”].)
In applying the continuing violation doctrine, “we consider
whether ‘the employer’s . . . actions [were] (1) sufficiently similar
in kind—recognizing . . . that similar kinds of unlawful employer
conduct, such as acts of harassment or failures to reasonably
accommodate disability, may take a number of different forms
[citation]; (2) have occurred with reasonable frequency; (3) and
have not acquired a degree of permanence.’” (Yanowitz, supra,
36 Cal.4th at p. 1059; accord, Wawrzenski, supra,
15
106 Cal.App.5th at pp. 694-695.) Accordingly, the continuing
violation doctrine “require[s] that at least one act of harassment
or retaliation [or discrimination] occur during the limitations
period to make the continuing violation doctrine applicable.”
(Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319,
327; accord, Jumaane, supra, 241 Cal.App.4th at p. 1402 [“the
continuing violation doctrine permits a plaintiff to recover for
unlawful practices occurring outside the limitations period if the
practices continued into that period”].)
The plaintiff bears the burden to demonstrate that his or
her claims are founded on a pattern or practice of employer
conduct that continued into the limitations period. (Jumaane,
supra, 241 Cal.App.4th at p. 1402.)
C. Alvarez Failed To Raise a Triable Issue of Fact as to Her
FEHA Discrimination and Retaliation Claims
FEHA prohibits an employer from subjecting an employee
to discrimination “in terms, conditions, or privileges of
employment” based on the employee’s protected status, including
his or her physical disability or medical condition. (§ 12940,
subd. (a).) To prevail on her FEHA discrimination claim, Alvarez
needed to show “‘(1) [s]he was a member of a protected class,
(2) [s]he . . . was performing competently in the position [s]he
held, (3) [s]he suffered an adverse employment action, such as
termination, demotion, or denial of an available job, and (4) some
other circumstance suggests discriminatory motive.’” (Park v.
Board of Trustees of California State University (2017) 2 Cal.5th
1057, 1067-1068.)
“‘[T]o establish a prima facie case of retaliation under the
FEHA, a plaintiff must show (1) he or she engaged in a “protected
16
activity,” (2) the employer subjected the employee to an adverse
employment action, and (3) a causal link existed between the
protected activity and the employer’s action.’” (Cornell v.
Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 942; accord,
Glynn v. Superior Court (2019) 42 Cal.App.5th 47, 55.) Protected
activity includes “any practices forbidden under [FEHA] or
because [Alvarez] has filed a complaint, testified, or assisted in
any proceeding under [FEHA].” (§ 12940, subd. (h).)
“[F]or both discrimination and retaliation claims, an
adverse employment action is one that ‘materially affects the
terms, conditions, or privileges of employment.’” (Bailey v.
San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611, 637
(Bailey); § 12940, subd. (a).) “[T]he phrase ‘terms, conditions, or
privileges’ of employment must be interpreted liberally and with
a reasonable appreciation of the realities of the workplace in
order to afford employees the appropriate and generous
protection against employment discrimination that the FEHA
was intended to provide.” (Yanowitz, supra, 36 Cal.4th at
p. 1054.) “‘Minor or relatively trivial adverse actions or conduct
by employers or fellow employees that, from an objective
perspective, are reasonably likely to do no more than anger or
upset an employee cannot properly be viewed as materially
affecting the terms, conditions, or privileges of employment and
are not actionable . . . .’ [Citation.] But adverse treatment that is
reasonably likely to impair an employee’s job performance or
prospects for advancement in their career falls within the reach
of FEHA’s antiretaliation [and antidiscrimination] provision[s].”
(Bailey, at pp. 637-638.)
Alvarez contends Kaiser discriminated against her based
on her disability and retaliated against her by, among other
17
things, failing to promote her, denying her time off for medical
appointments, and constructively discharging her. Kaiser met its
initial burden to show that Alvarez could not make a prima facie
case of discrimination or retaliation because there was no
actionable conduct after January 1, 2019; Alvarez failed to
demonstrate there was a triable issue of fact.6 Most of the
alleged adverse actions Alvarez relies on occurred prior to
January 1, 2019. As discussed, any claims based on unlawful
conduct prior to 2019 have lapsed under the prior one-year
statute of limitations unless Alvarez can show there was at least
one unlawful act as part of a continuing course of conduct that
occurred after January 1, 2019. (See Jumaane, supra,
241 Cal.App.4th at p. 1402; Trovato v. Beckman Coulter, Inc.,
supra, 192 Cal.App.4th at p. 327.)
Alvarez cannot meet this burden. It is undisputed that the
record reflects only three incidents of alleged discrimination
and/or retaliation that occurred after January 1, 2019: (1) the
February 2019 communication by Johnson approving Alvarez’s
TORT request and asking Alvarez to provide workers’
compensation paperwork prior to approval of future time off for
medical appointments; (2) Moore-Mohead’s February 2020 denial
of Alvarez’s request that Cahee handle her time-off requests; and
(3) the June 2020 alleged constructive termination based on
Alvarez’s need to resign to avoid Johnson’s hostility against her.
None of the three incidents constituted an unlawful
adverse employment action. It is undisputed that these actions
6 Alvarez argues as to each cause of action that there were
triable issues of fact. We therefore focus on whether Alvarez met
her burden; she does not argue Kaiser did not meet its initial
burden.
18
upset Alvarez. However, “‘conduct by employers or fellow
employees that, from an objective perspective, are reasonably
likely to do no more than anger or upset an employee cannot
properly be viewed as materially affecting the terms, conditions,
or privileges of employment and are not actionable.’” (Bailey,
supra, 16 Cal.5th at p. 637; accord McRae v. Department of
Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386 [“‘A
change that is merely contrary to the employee’s interests or not
to the employee’s liking is insufficient [to constitute an adverse
action].’”].)
Alvarez has not explained how Johnson’s management of
her time was unlawful or had any impact on her employment.
Alvarez did not show how Johnson’s request for worker’s
compensation paperwork prior to a future doctor’s appointment
would have negatively affected Alvarez’s employment. In fact,
Johnson approved the time off that Alvarez requested in
February 2019, and Alvarez did not thereafter submit any
requests for time off. Nor did Alvarez submit any time-off
requests after Moore-Mohead denied Alvarez’s February 2020
request to have Cahee oversee Alvarez’s time-off requests.
Alvarez’s subjective concerns that Johnson would deny Alvarez’s
time-off requests in the future at most raised the specter of future
discrimination or harassment at some unknown time. Such fears
cannot constitute evidence of an adverse employment action for
purposes of summary judgment. (See Brown v. Ransweiler (2009)
171 Cal.App.4th 516, 525 [issue of fact “‘is not created by
“speculation, conjecture, imagination or guess work”’” or by
“‘“cryptic, broadly phrased, and conclusory assertions” [citation],
or mere possibilities’”].) Thus, the 2019 communication from
Johnson and the decision to have Johnson resume administering
19
Alvarez’s time-off requests did not constitute unlawful adverse
employment actions on which a FEHA claim could be based, nor
did they support application of the continuing violation doctrine
to support her lapsed claims.
Alvarez’s argument that her alleged constructive discharge
constituted an adverse employment action is likewise unavailing.
Constructive discharge occurs “when the employer coerces the
employee’s resignation, either by creating working conditions
that are intolerable under an objective standard, or by failing to
remedy objectively intolerable working conditions that actually
are known to the employer.” (Mullins v. Rockwell Internat. Corp.
(1997) 15 Cal.4th 731, 737; accord, Simers v. Los Angeles Times
Communications LLC (2018) 18 Cal.App.5th 1248, 1269.) “The
conditions giving rise to the resignation must be sufficiently
extraordinary and egregious to overcome the normal motivation
of a competent, diligent, and reasonable employee to remain on
the job . . . .” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th
1238, 1246.) “‘Where a plaintiff fails to demonstrate the severe or
pervasive harassment necessary to support a hostile work
environment claim, it will be impossible for her to meet the
higher standard of constructive discharge: conditions so
intolerable that a reasonable person would leave the job.’”
(Holmes v. Petrovich Development Co., LLC (2011)
191 Cal.App.4th 1047, 1062.)
Alvarez submitted evidence she felt forced to resign
because the prospect of having Johnson manage her time made
her feel suicidal and depressed. However, at the time of her
resignation, Alvarez had not had any contact with Johnson for
more than a year. Thus, Alvarez could not show that she was
subject to objectively intolerable working conditions at the time of
20
her resignation, and as discussed, her fear of future speculative
harm was insufficient to create a triable issue of fact that she
suffered an adverse action. While we have no reason to doubt
that the prospect of submitting time-off requests to Johnson was
subjectively distressing for Alvarez, there is no evidence that
having Johnson continue to manage Alvarez’s time-off requests
created objectively extraordinary or egregious conditions such
that no reasonable employee would remain on the job. (See
Turner v. Anheuser-Busch, Inc., supra, 7 Cal.4th at p. 1246.)
Accordingly, Alvarez has not raised a triable issue of fact that she
was constructively discharged, and her resignation, therefore, did
not constitute an unlawful act that could support a FEHA
discrimination or retaliation claim, nor is it a basis for
application of the continuing violation doctrine.
D. Alvarez Failed To Raise a Triable Issue of Fact as to Her
Constructive Discharge Cause of Action
For the same reasons that Alvarez’s resignation was not a
constructive discharge that could support her causes of action for
discrimination and retaliation, Alvarez has not raised a triable
issue of fact that Kaiser created or failed to remedy conditions so
intolerable that a reasonable employee would have felt coerced to
resign. (See Holmes v. Petrovich Development Co., LLC, supra,
191 Cal.App.4th at p. 1062.)
E. Alvarez Failed To Raise a Triable Issue of Fact as to Her
FEHA Harassment Claim
Under FEHA, it is unlawful “[f]or an employer . . . or any
other person, because of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical
21
condition, [etc.,] to harass an employee . . . .” (§ 12940,
subd. (j)(1).) “‘“[H]arassment consists of conduct outside the
scope of necessary job performance, conduct presumably engaged
in for personal gratification, because of meanness or bigotry, or
for other personal motives.’”” (Roby v. McKesson Corp. (2009)
47 Cal.4th 686, 707; accord, Reno v. Baird (1998) 18 Cal.4th 640,
645-646.) “Hostile work environment harassment is a type of
harassment that ‘“has the purpose or effect of either interfering
with the work performance of an employee, or creating an
intimidating workplace.”’” (Wawrzenski, supra, 106 Cal.App.5th
at p. 692.) “‘FEHA makes the employer strictly liable for
harassment by a supervisor.’” (Id. at p. 694.)
To prevail on a cause of action for hostile work environment
harassment under FEHA, an employee must show he or she was
“subjected to ‘offensive comments or other abusive conduct’ that
[was] (1) based on a ‘protected characteristic’ and (2) ‘sufficiently
severe or pervasive as to alter the conditions of [her]
employment.’” (Doe v. Department of Corrections &
Rehabilitation (2019) 43 Cal.App.5th 721, 736; accord, Bailey,
supra, 16 Cal.5th at p. 627.) “Whether a work environment is
reasonably perceived as hostile or abusive ‘is not, and by its
nature cannot be, a mathematically precise test.’ [Citation.] ‘The
working environment must be evaluated in light of the totality of
the circumstances.’ [Citation.] ‘“These may include the
frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.”’” (Bailey, at p. 628.) “A single
incident of harassing conduct is sufficient to create a triable issue
regarding the existence of a hostile work environment if the
22
harassing conduct has unreasonably interfered with the
plaintiff’s work performance or created an intimidating, hostile,
or offensive working environment.” (§ 12923, subd. (b); see
Bailey, at p. 629 [“‘a single racial epithet can be so offensive it
gives rise to a triable issue of actionable harassment’”];
Wawrzenski, supra, 106 Cal.App.5th at p. 693.) “The objective
severity of harassment should be judged from the perspective of a
reasonable person in the plaintiff’s position.” (Bailey, at p. 629;
accord, Miller v. Department of Corrections (2005) 36 Cal.4th 446,
462; Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908,
940.)
Alvarez contends she has raised triable issues of fact
whether Johnson harassed her due to her disability. As with her
other FEHA claims, the majority of the conduct Alvarez
complains of occurred prior to January 1, 2019 and is therefore
untimely absent application of the continuing violations doctrine.
The only harassing conduct Alvarez alleges to have occurred
within the relevant statutory period is Johnson’s request for her
worker’s compensation paperwork in February 2019. However,
Johnson’s request that Alvarez submit paperwork with her
time-off requests going forward was nothing more than a
“‘“[c]ommonly necessary personnel management action[],”’” which
generally “‘“do[es] not come within the meaning of harassment.”’”
(Roby v. McKesson Corp., supra, 47 Cal.4th at pp. 707, 709; see
also Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860,
879 [“The [employer’s] statements and personnel decisions
concerning Thompson [including a no-eating policy during
briefing and requiring overtime] do not create a material factual
dispute as to harassment because ‘[h]arassment is not conduct of
23
a type necessary for management of the employer’s business or
performance of the supervisory employee’s job.’”].)
Even if Alvarez is correct that worker’s compensation
paperwork need not be submitted at the time of the request but
may be submitted after the fact, Johnson’s request still does not
constitute harassment. The single request was not sufficiently
extreme or offensive. (Cornell v. Berkeley Tennis Club, supra,
18 Cal.App.5th at p. 940 [“Four comments over several months
does not establish a pattern of routine harassment creating a
hostile work environment, particularly given that the comments
were not extreme.”]; cf. Bailey, supra, 16 Cal.5th at p. 634
[concluding “there is a triable issue of fact whether [co-worker’s]
one-time use of the N-word was, under the totality of the
circumstances, sufficiently severe so as to create a hostile work
environment”].) Nor was the request sufficiently severe or
pervasive to constitute harassment based on disability. The
evidence does not show behavior that a reasonable person
working under the same conditions “‘“would [have found] severely
hostile or abusive.”’” (Lyle v. Warner Brothers Television
Productions (2006) 38 Cal.4th 264, 283.)
F. Alvarez Failed To Raise a Triable Issue of Fact as to Her
Cause of Action for Failure To Provide a Reasonable
Accommodation
Under FEHA, it is an unlawful employment practice for an
employer “to fail to make reasonable accommodation for the
known physical or mental disability of an . . . employee” unless
the accommodation would cause “undue hardship” to the
employer. (§ 12940, subd. (m)(1); see Green v. State of California
(2007) 42 Cal.4th 254, 262; Featherstone v. Southern California
24
Permanente Medical Group, supra, 10 Cal.App.5th at p. 1166.)
The elements of a failure to accommodate claim are “‘(1) the
plaintiff has a disability under the FEHA, (2) the plaintiff is
qualified to perform the essential functions of the position, and
(3) the employer failed to reasonably accommodate the plaintiff’s
disability.’” (Swanson v. Morongo Unified School Dist. (2014)
232 Cal.App.4th 954, 969; accord, Lui v. City and County of
San Francisco (2012) 211 Cal.App.4th 962, 971.) The plaintiff
bears the burden of showing he or she was able to perform the job
with a reasonable accommodation. (Green, at p. 262; Lui, at
p. 971.)
“An employee is not required to specifically invoke the
protections of FEHA or speak any ‘magic words’ in order to
effectively request an accommodation under the statute.
[Citations.] However, the employee must engage in the
interactive process and ‘“‘can’t expect the employer to read his
mind and know he secretly wanted a particular accommodation
and sue the employer for not providing it.’”’” (Soria v. Univision
Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 598 (Soria).)
As a threshold matter, many of Alvarez’s allegations of
failure to accommodate occurred prior to January 2019, and they
are therefore time-barred (for example, her request for an
ergonomic assessment sometime between March 2013 and
March 2015 and Johnson’s alleged interference with Alvarez’s
requests for time off for medical appointments in 2017 and 2018).
The only alleged failure to accommodate that occurred after
January 2019 was Moore-Mohead’s refusal to allow Cahee to
manage Johnson’s time-off requests in early 2020. However,
even assuming that having a different person oversee Alvarez’s
requests for time off was an appropriate accommodation, Alvarez
25
had other options available to obtain time off for her medical
appointments. As discussed, she could have taken paid sick leave
without advance approval, simply calling the attendance line to
say she was taking sick leave for the day. Or she could have
taken leave under the FMLA, which required a one-time approval
from HR (not Johnson) with a doctor’s certification of a medical
need for the leave. Alvarez testified she was aware of these
options, and she had recently taken FMLA leave, but she did not
want to use her paid sick time or FMLA leave for her medical
appointments.
The availability of options for Alvarez to take time off for
medical appointments through FMLA or sick leave without
needing Johnson’s approval was a reasonable accommodation.
The fact that Alvarez was unhappy with this accommodation does
not give rise to an actionable claim. (See Cal. Code Regs., tit. 2,
§ 11068, subd. (e) [“The employer . . . shall consider the
preference of the . . . employee to be accommodated, but has the
right to select and implement an accommodation that is effective
for both the employee and the employer.”]; see Hanson v. Lucky
Stores, Inc. (1999) 74 Cal.App.4th 215, 228 [“The employer is not
obligated to choose the best accommodation or the
accommodation the employee seeks.”].) Further, after Moore-
Mohead told Alvarez that Johnson would resume managing her
time, there is no evidence that Alvarez informed Kaiser that she
required an additional accommodation or that she felt having
Johnson approve her TORT requests was unacceptable.
Accordingly, the trial court properly granted summary judgment
on the cause of action for failure to accommodate.7
7 To the extent Alvarez argues she was denied the
accommodation of working from home, she did not allege this
26
G. Alvarez Failed To Raise a Triable Issue of Fact as to Her
Cause of Action for Failure To Participate in the Interactive
Process
FEHA requires an employer to participate in a good faith
interactive process with a disabled employee in order “to
determine effective reasonable accommodations, if any, in
response to a request for reasonable accommodation by an
employee.” (§ 12940, subd. (n).) The employer must engage in
this process “to explore the alternatives to accommodate the
disability. [Citations.] . . . Failure to engage in this process is a
separate FEHA violation independent from an employer’s failure
to provide a reasonable disability accommodation.” (Wysinger v.
Automobile Club of Southern California (2007) 157 Cal.App.4th
413, 424; accord, Soria, supra, 5 Cal.App.5th at p. 600.) “Both
the employer and the employee are responsible for participating
in the interactive process. Typically, the employee must initiate
the process ‘unless the disability and resulting limitations are
obvious.’” (Soria, at p. 600.)
However, an “‘employer cannot be held liable for failing to
engage in [the] interactive process when the employee was in fact
offered a reasonable accommodation.’” (Miller v. Department of
Corrections & Rehabilitation, supra, 105 Cal.App.5th at p. 282;
accord, Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at
p. 229.) As discussed, Alvarez was provided a reasonable
theory in her complaint or in her discovery responses. (See
California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625,
637, fn. 3 [“[a] party may not oppose a summary judgment motion
based on a claim, theory, or defense that is not alleged in the
pleadings”].)
27
accommodation: the ability to take FMLA leave or paid sick leave
without requiring Johnson’s approval. Accordingly, the trial
court properly granted summary adjudication on the failure to
engage in the interactive process cause of action.
H. Alvarez Failed To Raise a Triable Issue of Fact as to Her
Cause of Action for Failure To Prevent Discrimination,
Harassment, and Retaliation
Section 12940, subdivision (k), provides it is an unlawful
employment practice for an employer “to fail to take all
reasonable steps necessary to prevent discrimination and
harassment from occurring.” Further, retaliation is a form of
discrimination actionable under section 12940, subdivision (k).
(Department of Fair Employment & Housing v. M&N Financing
Corp. (2021) 69 Cal.App.5th 434, 445 [“an employer who has
retaliated against an employee has necessarily discriminated
against that employee and has failed to prevent discrimination,
within the meaning of section 12940, subdivision (k)”].)
To prove a claim for failure to prevent, a plaintiff must
show (1) the plaintiff was subjected to discrimination,
harassment, or retaliation; (2) the defendant failed to take all
reasonable steps to prevent discrimination, harassment, or
retaliation; and (3) the failure caused plaintiff to suffer injury,
damage, loss, or harm. (See Caldera v. Department of Corrections
& Rehabilitation (2018) 25 Cal.App.5th 31, 43-44.)
A claim for failure to prevent discrimination, harassment,
or retaliation is derivative of a claim for the underlying violation.
(See Featherstone, supra, 10 Cal.App.5th at p. 1166.) Because
Alvarez’s underlying causes of action for discrimination,
harassment, and retaliation fail, so does her cause of action for
28
failure to prevent. (Dickson v. Burke Williams, Inc. (2015) 234
Cal.App.4th 1307, 1318 [“There cannot be a claim for failure to
take reasonable steps necessary to prevent sex discrimination
under section 12940, subdivision (k) if actionable sex
discrimination has not been found.”]; Thompson v. City of
Monrovia, supra, 186 Cal.App.4th at p. 880 [“the employee has no
cause of action for a failure to investigate unlawful harassment
or retaliation, unless actionable misconduct occurred”]; Scotch v.
Art Institute of California (2009) 173 Cal.App.4th 986, 1021
[“Because we affirm summary judgment on all of Scotch’s FEHA
causes of action, we also affirm summary judgment on the failure
to provide an environment free from discrimination cause of
action.”].)
I. Alvarez Failed To Raise a Triable Issue of Fact as to Her
Cause of Action for Violation of CFRA
CFRA “‘is intended to give employees an opportunity to
take leave from work for certain personal or family medical
reasons without jeopardizing job security.’” (Soria, supra,
5 Cal.App.5th at p. 600; accord, Moore v. Regents of University of
California (2016) 248 Cal.App.4th 216, 233.) CFRA provides that
a qualified employee of an employer with five or more employees
may take up to 12 weeks of family care and medical leave in any
12-month period. (§ 12945.2, subd. (a).) CFRA prohibits an
employer from taking any adverse employment action against an
individual because of his or her exercise of the right to family
care and medical leave (§ 12945.2, subd. (k)(1)) and from
interfering with an employee’s right to take leave (id., subd. (q)).
(See Bareno, supra, 7 Cal.App.5th at p. 560; Soria, at
pp. 600-601.) “‘Interference’ claims prevent employers from
29
wrongly interfering with employees’ approved leaves of absence,
and ‘retaliation’ or ‘discrimination’ claims prevent employers
from terminating or otherwise taking action against employees
because they exercise those rights.” (Richey v. AutoNation, Inc.
(2015) 60 Cal.4th 909, 920.)
A CFRA interference claim “‘“consists of the following
elements: (1) the employee’s entitlement to CFRA leave rights;
and (2) the employer’s interference with or denial of those
rights.”’” (Soria, supra, 5 Cal.App.5th at p. 601; accord, Moore v.
Regents of University of California, supra, 248 Cal.App.4th at
p. 250.) “‘Interfering with’ the exercise of an employee’s rights
includes, for example, refusing to authorize CFRA leave and
discouraging an employee from using such leave.” (Cal. Code
Regs., tit. 2, § 11094, subd. (a).)
With respect to Alvarez’s interference claim, it is
undisputed that Alvarez understood the Kaiser CFRA leave
policy and she applied and was approved for FMLA/CFRA leave
for intermittent absences for late 2018 through early 2019.
Alvarez also applied for and was approved for continuous
FMLA/CFRA leave beginning in August 2019. There is no
evidence of Kaiser denying or otherwise interfering with
Alvarez’s right to CFRA leave. Accordingly, her CFRA
interference cause of action fails.
In order to prove a claim for retaliation or discrimination in
violation of CFRA, a plaintiff must prove: “‘“(1) the defendant
was an employer covered by CFRA; (2) the plaintiff was an
employee eligible to take CFRA [leave]; (3) the plaintiff exercised
[his or] her right to take leave for a qualifying CFRA purpose;
and (4) the plaintiff suffered an adverse employment action, such
as termination, fine, or suspension, because of [the] exercise of
30
[his or] her right to CFRA [leave].”’” (Bareno, supra,
7 Cal.App.5th at p. 560; accord, Soria, supra, 5 Cal.App.5th at
p. 604.)
Alvarez’s CFRA claim for retaliation and discrimination
also fails because, as discussed, she has not identified any
adverse employment action subsequent to her exercise of her
CFRA rights. Thus, she has not raised a triable issue whether
she “‘“suffered an adverse employment action . . . because of [the]
exercise of her right to CFRA [leave].”’” (Bareno, supra,
7 Cal.App.5th at p. 560.)
J. Alvarez Failed To Raise a Triable Issue of Fact as to Her
Retaliation Causes of Action Under the Labor Code
Labor Code section 98.6 states that an employer “shall not
discharge an employee or in any manner discriminate, retaliate,
or take any adverse action against any employee . . . because of
the exercise by the employee . . . of any rights afforded them.”
(Lab. Code, § 98.6, subd. (a).) Labor Code section 98.6,
subdivision (b)(3), states: “In addition to other remedies
available, an employer who violates this section is liable for a
civil penalty not exceeding ten thousand dollars ($10,000) per
employee for each violation of this section, to be awarded to the
employee or employees who suffered the violation.”
Labor Code section 1102.5 for whistleblower retaliation
prohibits an employer from retaliating against an employee “for
disclosing information . . . to a government or law enforcement
agency [or] 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
31
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).) Labor Code section 1102.5,
subdivision (f)(1), provides: “In addition to other remedies
available, an employer is liable for a civil penalty not exceeding
ten thousand dollars ($10,000) per employee for each violation of
this section to be awarded to the employee who was retaliated
against.”
The Labor Code does not specify a limitations period for
claims alleging violations of sections 98.6 and 1102.5. We
therefore look to the general statutes of limitations in the Code of
Civil Procedure. Code of Civil Procedure section 340 imposes a
one-year limitations period for “action[s] upon a statute for a
penalty or forfeiture” (Code Civ. Proc., § 340, subd. (a)), and
section 338 imposes a three-year limitations period for “action[s]
upon a liability created by a statute, other than a penalty or
forfeiture” (id., § 338, subd. (a)).
In her complaint Alvarez sought both damages and
statutory penalties for her Labor Code claims. Kaiser argues
that because Alvarez seeks civil penalties, the one-year statute of
limitations under Code of Civil Procedure section 340 applies
notwithstanding the fact Alvarez also seeks economic damages.
Alvarez contends that although she seeks statutory penalties, her
claims for economic damages are subject to the three-year statute
of limitations found in section 338.
Alvarez’s attempt to split her Labor Code causes of action
into separate claims for economic damages and civil penalties is
not supported by California law. Both Labor Code sections 98.6
and 1102.5 impose mandatory penalties, as evidenced by the
identical language in both sections that “[i]n addition to other
32
remedies available, an employer is liable for a civil penalty.”
(Lab. Code, §§ 96.6, subd. (b)(3), 1102.5, subd. (f)(1), italics
added.) Thus, regardless of whether Alvarez also sought
economic damages, her Labor Code claims were necessarily
claims for civil penalties, and therefore, the one-year statute of
limitations under Code of Civil Procedure section 340 applies.
(See Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th
967, 977-978 [applying one-year statute of limitations to action
filed under Health & Saf. Code, § 25249.7, explaining that Code
Civ. Proc., § 338, subd. (a), “exclude[s] causes of action for civil
penalties from the scope of section 338” and “[g]enerally,
section 340, subdivision (a) applies if a civil penalty is
mandatory”]; see also The TJX Companies, Inc. v. Superior Court
(2008) 163 Cal.App.4th 80, 85 [explaining in applying one-year
limitations period under Code of Civ. Proc., § 340, subd (a), to
claim under Civ. Code, § 1747.08, that “[i]n determining which
statute of limitations applies, ‘[t]he key question is whether the
penalty is mandatory or discretionary, not whether the provisions
awarding damages and imposing civil penalties are found in
separate subdivisions of the statute’”].)
Alvarez relies on Minor v. FedEx Office & Print Services
(N.D.Cal. 2016) 182 F.Supp.3d 966 and Ayala v. Frito Lay, Inc.
(E.D.Cal. 2017) 263 F.Supp.3d 891 to support her position. We do
not find the reasoning in those cases persuasive. In Minor, the
district court found that actions pursuant to Labor Code
section 1102.5 were subject to the three-year statute of
limitations unless “the suit seeks the civil penalty provided in
[section] 1102.5(f),” in which case the one-year statute of
limitations applied. (Minor, at p. 988.) In Ayala, the District
Court held that because the plaintiff did not seek civil penalties
33
under Labor Code section 1102.5, subdivision (f), the one-year
limitations period did not apply because the lawsuit was not one
for a “‘penalty or forfeiture.’” (Ayala, at p. 917.) The court in
Ayala reasoned (without authority) that claims under Labor Code
section 1102.5 and 1102.5, subdivision (f), “seek to redress
different harms.” (Ayala, at p. 917.)
The reasoning in Minor and Ayala ignores the Legislature’s
decision to make civil penalties mandatory regardless of whether
a plaintiff also seeks economic damages. We note that multiple
other district court cases have rejected the reasoning in Minor.
(See, e.g., Feast-Williams v. Merrill Lynch Fenner Pierce & Smith
Incorporated (C.D.Cal. Dec. 18, 2018) U.S. Dist. LEXIS 2303330
[“mandatory civil penalty for violation of [Lab. Code] section
1102.5 ensures that a one-year statute of limitations applies to
Section 1102.5 claims” even though plaintiff sought damages and
not civil penalties]; Delgado v. MillerCoors LLC (C.D.Cal. Mar.
16, 2017), 2017 U.S. Dist. Lexis 43482 [“the Minor court did not
analyze the statutory scheme; rather, it sidestepped the question
because the Minor plaintiff's claim was barred under either the
one-year or three-year limitations period”].) Further, although
federal court decisions interpreting state law may be persuasive,
they are not binding on state courts. (Brakke v. Economic
Concepts, Inc. (2013) 213 Cal.App.4th 761, 770.)
To prevail on her Labor Code claims, Alvarez needed to
show that she was subject to an adverse employment action as a
result of protected activity. (See St. Myers v. Dignity Health
(2019) 44 Cal.App.5th 301, 314; Ross v. County of Riverside
(2019) 36 Cal.App.5th 580, 592.) However, as discussed, Alvarez
has not raised a triable issue of fact that she was subject to an
adverse employment action within a year of filing her complaint.
34
Accordingly, the trial court properly granted summary
adjudication on the Labor Code claims.
K. Alvarez Failed To Raise a Triable Issue of Fact as to Her
Cause of Action for Intentional Infliction of Emotional
Distress
“A cause of action for intentional infliction of emotional
distress exists when there is ‘“‘“(1) extreme and outrageous
conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional
distress; (2) the plaintiff’s suffering severe or extreme emotional
distress; and (3) actual and proximate causation of the emotional
distress by the defendant’s outrageous conduct.”’”’ [Citations.] A
defendant’s conduct is ‘outrageous’ when it is so ‘“‘extreme as to
exceed all bounds of that usually tolerated in a civilized
community.’”’ [Citation.] And the defendant’s conduct must be
‘“‘intended to inflict injury or engaged in with the realization that
injury will result.’”’” (Hughes v. Pair (2009) 46 Cal.4th 1035,
1050-1051.) “‘“[B]ehavior may be considered outrageous if a
defendant . . . abuses a relation or position which gives him
power to damage the plaintiff’s interest . . . .”’” (Smith v.
BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 147.)
The statute of limitations for intentional infliction of
emotional distress is two years. (Wassmann v. South
Orange County Community College Dist. (2018) 24 Cal.App.5th
825, 852-853; Code Civ. Proc., § 335.1.) The statute begins to run
on the date of the “last act of emotional abuse.” (Pugliese v.
Superior Court (2007) 146 Cal.App.4th 1444, 1450.) Because
Alvarez filed the complaint on September 30, 2021, she needed to
35
raise a triable issue of fact that extreme and outrageous conduct
occurred after September 30, 2019.
Alvarez alleged in her cause of action for intentional
infliction of emotional distress that Johnson engaged in the
following “extreme and outrageous conduct” after October 2019:
Johnson “impos[ed] onerous and differential standards” prior to
granting time-off requests (the workers’ compensation paperwork
requirement) and she “forc[ed] Plaintiff to resign due to her
disability [and] for requesting reasonable accommodations.”
However, as discussed, neither Johnson’s request for worker’s
compensation paperwork to support future time-off request nor
the circumstances leading to Alvarez’s resignation were unlawful
or were so extreme as to exceed the bounds of what is tolerated in
a civilized community. The trial court therefore properly granted
summary adjudication on this cause of action.
DISPOSITION
The judgment is affirmed. Kaiser is to recover its costs on
appeal.
FEUER, J.
We concur:
MARTINEZ, P. J.
STONE, J.
36