demurrer - Quo Jure Corporation

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 her work restrictions when she returned. The best inference is surely that Lee was referring to other work restrictions. Smith might have specified her disability more clearly but Lee and Dillon Construction, at least, well knew what disability she meant. DFEH could not have known without asking, but they should have suspected—and very likely did suspect—an additional, pre-existing, non-pregnancy-related disability for which Smith was also charging discrimination. Even if they did not actually suspect such a thing, they could not reasonably have investigated Smith’s charge and failed to ask her what she meant. In sum, Smith’s DFEH complaint, fairly read, charges disability or perceived disability discrimination arising from two causes: (1) pregnancy complications and (2) some additional condition, not specified but (a) pre-dating the pregnancy complications and (b) serious enough to require work restrictions, which Lee tried to use to justify his causing Dillon Construction to fire Smith. C. Smith’s DFEH complaint plainly stated retaliation and FMLA claims. In view of the like-or-reasonably-related test, Smith cannot understand Dillon Construction’s (shorter) challenge to her retaliation and FMLA claims. Smith explains the FMLA violation: unlawful refusal to grant leave. She all but explains the retaliation claim: discharge in retaliation for taking leave despite Dillon Construction’s refusal to grant it. She also states the facts that support this claim: two warnings from her supervisor that if she went on leave he would have her fired. Omitting the label “retaliation” from the DFEH complaint is immaterial, just as it would be if she had omitted it in this action. See, e.g., Deppe v. United Airlines, supra, 217 F.3d at 1267, in which the plaintiff alleged sufficient facts in his EEOC charge, and thus his judicial complaint for another theory of discrimination could proceed. Cf. Baker v. Children’s Hospital Medical Center (1989) 209 Cal.App.3rd 1057: an action for race-based 5 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLON CONSTRUCTION’S DEMURRER TO FIRST AMENDED COMPLAINT
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 harassment and other disparate treatment based on race could proceed despite being based on facts absent from the DFEH complaint, and even though the plaintiff could not prove disparate treatment based on the facts he alleged in his DFEH complaint. Smith’s DFEH complaint, liberally construed, satisfies the pre-conditions for all four of her FEHA causes of action. In order to reduce employment discrimination by providing cumulative remedies, both administrative and judicial, that employees can initiate and maintain with or without a lawyer’s help, DFEH complaints should be liberally construed. The authorities on which Dillon Construction relies do not require, and their spirit does not permit, the cramped, crabbed reading of the FEHA and the FMLA that Dillon Construction gives them. D. Smith’s FEHA and FMLA allegations state a cause of action for wrongful discharge, which does not require exhaustion of administrative remedies. The exhaustion rule does not apply to common law causes of action, including causes of action for wrongful discharge in contravention of public policy, whether or not a plaintiff brings or might have brought concurrent or successive civil actions based on allegations of the same or similar misconduct. Rojo v. Kliger (1990) 52 Cal.3d 65, 88-89 (employees alleged they were discharged, actually and constructively, for refusing to give sexual favors). See also Stevenson v. Superior Court ( 1998 ) 16 Cal.4th 880, 887 (age discrimination; tort law enforces the public-policy exception to the at-will employment principle); Walrath v. Sprinkel (2002) 99 Cal.App.4th 1237, 1242 (retaliation for complaints against age discrimination). The elements of a cause of action for wrongful discharge against public policy are (1) discharge, (2) causation (discharge for an unlawful reason), and (3) where such discharge contravenes a fundamental California public policy. Smith’s First, Second, Third, and Fourth Causes of Action each plead these elements. Accordingly, even if a 6 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT DILLON CONSTRUCTION’S DEMURRER TO FIRST AMENDED COMPLAINT
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demurrer - Quo Jure Corporation

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