Opinion
B312139
04-07-2023
JOSE DE ANDA, Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant and Appellant.
Law Offices of John T. Schreiber, John T. Schreiber for Plaintiff and Appellant. Michael N. Feuer, City Attorney, Julie Conboy Riley, Interim General Counsel, DWP, Anat Ehrlich, Assistant City Attorney, and Heather E. Jones, Deputy City Attorney, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. 20STCV02115, Daniel S. Murphy, Judge.
Law Offices of John T. Schreiber, John T. Schreiber for Plaintiff and Appellant.
Michael N. Feuer, City Attorney, Julie Conboy Riley, Interim General Counsel, DWP, Anat Ehrlich, Assistant City Attorney, and Heather E. Jones, Deputy City Attorney, for Defendant and Respondent.
CHANEY, J.
Jose De Anda appeals from a judgment entered after the trial court sustained without leave to amend the City of Los Angeles's demurrer to De Anda's employment disabilitydiscrimination and retaliation complaint. We affirm as to De Anda's disability-based claims but conclude De Anda should be afforded leave to amend his retaliation claim.
BACKGROUND
We take the facts from the first amended complaint, assuming they are true for purposes of this appeal, and from records of which the trial court took judicial notice.
I. De Anda's Employment
Jose De Anda was employed as a Security Officer by the Los Angeles Department of Water and Power (DWP or the City) beginning in 1994, and ultimately rose to the position of Principal Security Officer.
On April 8, 2014, De Anda's supervisor, James West, made a racist remark to a Korean security officer. De Anda learned of the remark later that day.
On April 17, 2014, West "violently threatened" De Anda in an unspecified manner.
The threat caused De Anda to suffer posttraumatic stress disorder (PTSD), depressive disorder, obstructive sleep apnea, hypertension, irritable bowel syndrome, and gastrointestinal problems, and caused him to have trouble sleeping.
After De Anda reported the racist remark and threat to Carmella Sheeler, DWP's Equal Employment Opportunity Services (EEOS) analyst, West began a campaign of retaliatory harassment that persisted for the next four months. West subjected De Anda to unwarranted negative feedback in his performance evaluation, stricter scrutiny of his work, bogus charges, unreasonable acts of surveillance and investigation, public criticism, and an excessive workload compared to other Principal Security Officers.
De Anda went on sick leave from September 2014 to May 2019. While convalescing at home he suffered a back injury.
In October 2016, a physician recommended that De Anda be moved out of West's department. In 2018, a physician also recommended that he not be required to lift more than 30 pounds due to his back injury.
On May 28, 2019, DWP assigned De Anda to the position of Senior Administrative Clerk, a position outside West's department that does not require heavy lifting.
II. Lawsuit
On January 16, 2020, De Anda, in pro. per., filed a complaint against the City of Los Angeles, alleging failure to provide a reasonable accommodation for his disability, failure to engage in a timely, good faith interactive process concerning his disability, and retaliation within the meaning of the California Fair Employment and Housing Act (Gov. Code, § 12900, et seq.; FEHA).
Undesignated statutory references will be to the Government Code.
The City demurred to the complaint. De Anda waited until the day before the hearing to file an opposition, which the trial court declined to consider. The court sustained the demurrer with leave to amend.
In the operative first amended complaint, De Anda alleged West made an unidentified racist remark to Peter Lee, a coworker, and an unidentified threat to De Anda which caused him to "fear for his life." On April 22, 2014, De Anda reported both remarks to Sheeler, DWP's EEOS analyst.
He alleged West immediately began to retaliate against him for reporting the remark and threat by more closely scrutinizing his performance, criticizing his report writing skills, demanding explanations about how De Anda deployed security personnel, subjecting him to unspecified investigations, yelling at him about a vehicle audit (and requiring him to audit parked vehicles for the presence of keys), disclosing his performance issues to a union representative, and giving him more work than was given to his coworkers.
De Anda alleged West's behavior went beyond the "standard oversight" of De Anda's performance. (However, he also alleged that "West's actions are not unique among many supervisors and managers.")
De Anda alleged his PTSD, depressive disorder and other ailments rendered him unable to perform the essential functions of a Principal Security Officer, or to work effectively within the DWP Security Department, because working in that department would "remind him of the incident that caused his disability" and cause "flare-ups of his anxiety and PTSD." He alleged his "symptoms became so severe that it was necessary for him to take sick leave at the end of August 2014. He returned on September 2, 2014, but quickly realized he was not yet ready to resume his work duties and went out on sick leave" twice more, ultimately not returning until May 28, 2019.
De Anda alleged his "disability" rendered him unable to perform as a Principal Security Officer, which requires "physical strength, endurance, and the ability to work effectively within the LADWP Security Department." He alleged he could "no longer work with security-related items that remind him of the incident that caused his disability. Simply put, the security environment causes flare-ups of his anxiety and PTSD." De Anda did not allege that his injured back prevented him working in the security department, nor that the position required heavy lifting beyond his medical restriction.
De Anda alleged he filed for worker's compensation in October 2014, and was provided a physician's report stating he "should be moved to another department. If this does not occur the same problems will evolve."
De Anda alleged that in early 2017 he began seeking reasonable accommodations at DWP for his work restrictions due to his "actual or perceived disabilities and/or medical conditions," which efforts continue to the present.
He alleged that on February 9, 2017, he discussed with DWP returning to work pursuant to the medical transfer section of the City's civil service rules. On September 14, 2017, he was offered and reluctantly accepted a position as a Senior Administrative Clerk, a position far below his qualifications and prior work.
In 2017, De Anda filed an administrative complaint with the California Department of Fair Employment and Housing (DFEH), alleging DWP failed to accommodate his disability and failed to engage in an interactive process. He received DFEH's final investigatory findings on January 13, 2017.
De Anda alleged that on January 8, 2018, he filed a "charge of retaliation" with DFEH, alleging DWP retaliated against him for reporting West's threat to himself and racist remark concerning Peter Lee. He asserted in the charging document that the "most recent date of harm" was January 3, 2018. The charging document was attached to the first amended complaint but appears to be only an intake form (what DFEH later classified as an "intake inquiry"), not an administrative complaint. On April 2, 2018, DFEH sent De Anda a letter closing the second administrative complaint proceeding because his 2017 complaint was "being amended to include the allegations provided during [his] intake interview." However, on January 16, 2019, DFEH issued a right to sue letter pertaining only to De Anda's claims for failure to accommodate and failure to engage in an interactive process, not retaliation.
De Anda alleged that assigning him to the position of Senior Administrative Clerk did not qualify as a reasonable accommodation, and the City was required to reassign him to a vacant position at the same level as his prior position. He alleged that as a Principal Security Officer he supervised 96 security officers, exercised independent judgment concerning scheduling matters, distributed keys and access cards to sensitive locations on an as-needed basis, granted access to non-security personnel to sensitive facilities, and made decisions to approve or deny detentions and arrests performed by subordinate officers. He reviewed reports completed by subordinates, performed interviews, issued discipline, and supervised the investigation of incidents, thefts, disturbances and accidents. As a Senior Administrative Clerk, he performed administrative tasks such as data entry, answering phones, and handling mail. A Senior Administrative Clerk made 13 percent less than a Principal Security Officer.
In his third cause of action, De Anda alleged defendants "retaliated against [him] based in whole or part on [his] protected activities, including his objection to and speaking out against inappropriate and unlawful racial harassment (the racist remark West made to Lee) in violation of [FEHA]. The retaliation entailed subjecting [De Anda] to numerous adverse employment actions including, but not limited to, unwarranted negative feedback in [his] performance evaluation, stricter scrutiny of [his] work, bogus charges against [him], unreasonable acts of 'surveillance' and 'investigation' focused on [him], additional job requirements, an excessive workload compared to other Principal Security Officers, public criticism of [De Anda], actions designed to intimidate and instill fear in [him], and the failure and refusal to reasonably accommodate [his] disabilities and engage in a timely, good faith interactive process. Plaintiff's protected activity was the substantial motivating reason for Defendants' actions in this respect."
The City demurred to De Anda's first amended complaint.
De Anda again failed to respond before the hearing, but an attorney made a special appearance for him and suggested that De Anda, who had hitherto proceeded in pro. per., be given an opportunity to retain a specialist in employment law to help him with the complaint. The attorney identified no further facts De Anda could allege.
The trial court sustained the City's demurrer to De Anda's causes of action for failure to accommodate and failure to engage in an interactive process on the ground that he alleged no disability covered by FEHA. It sustained the City's demurrer to De Anda's retaliation claim because the pleading demonstrated the claim was untimely. The court denied leave to amend on the ground that De Anda had already been granted leave to amend once but failed to rectify the complaint's original deficiencies, and at the hearing proposed no further facts he wished to allege. The court entered judgment accordingly.
DISCUSSION
On review of a trial court's order sustaining a demurrer we "examine the complaint de novo." (McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 415.) "We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse." (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.)
A. Failure to Accommodate or Engage in an Interactive Process
It is an unlawful employment practice "to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee" unless the employer demonstrates doing so would impose an undue hardship. (§ 12940, subd. (m)(1).) The elements of a claim for failure to accommodate are: (1) the plaintiff has a disability covered by FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff's disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256 (Jensen).)
It is an unlawful employment practice "to fail to engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations ...." (§ 12940, subd. (n).)
As noted, the first element of a claim for failure to accommodate is that the plaintiff has a disability covered by FEHA. Here, De Anda alleged he suffered two disabilities: Anxiety caused by working with West, which required that he be transferred out of West's department, and a back injury, which required that he be transferred to a position that did not require heavy lifting. He alleged that a Principal Security Officer is required to have "physical strength," but did not allege this includes the ability to do heavy lifting.
Under FEHA, the term "mental disability" is defined to include "any mental or psychological disorder or condition . . . that limits a major life activity." (§ 12926, subd. (j)(1), (5).) "A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult." (Id., subd. (j)(1)(B).) The term" 'Major life activities'" is "broadly construed and shall include physical, mental, and social activities and working." (Id., subd. (j)(1)(C).)
PTSD can fall within the FEHA definition of mental disability if it limits a major life activity. (Jensen, supra, 85 Cal.App.4th at pp. 258-259.) "Working is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments." (§ 12926.1, subd. (c).)
Although FEHA defines "working" as a major life activity, De Anda does not allege his disability renders him unable to work, only that it renders him unable to work for West. However, FEHA does not list working under a particular supervisor as a major life activity. De Anda adduces no authority for the proposition that inability to work for a particular supervisor constitutes a major life activity under FEHA, and our independent search has discovered none. De Anda therefore alleges no disability cognizable under FEHA.
De Anda argues that Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78 (Higgins-Williams) implied that an employee's stress-related ailment caused by an abusive supervisor constitutes a disability under FEHA. We disagree.
In Higgins-Williams, the plaintiff alleged her supervisor: (1) "was curt and abrupt with plaintiff, while being open and friendly with plaintiff's coworkers, and gave plaintiff a disproportionate share of work"; (2) inaccurately "accused [her] of being irresponsible [with] her identification badge"; and (3) "grabbed plaintiff's arm and yelled at her." The plaintiff suffered a panic attack and never returned to work. (Higgins-Williams, supra, 237 Cal.App.4th at p. 82.)
In affirming summary judgment for the employer, the court held that "[a]n employee's inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of the employee's job performance does not constitute a disability under FEHA." (Higgins-Williams, supra, 237 Cal.App.4th at p. 84, italics added.)
De Anda argues that the court's qualification limiting its holding to those instances where the supervisor exercises "standard oversight" implies a contrary rule where the supervisor is abusive. In other words, according to De Anda, an employee's inability to work under a particular supervisor because of anxiety and stress related to the supervisor's nonstandard oversight constitutes a disability under FEHA. We disagree.
First, the implications of an employee's mental condition caused by an abusive supervisor was not before the Higgins-Williams court. An appellate decision offers no authority for a proposition not considered. (People v. Barker (2004) 34 Cal.4th 345, 354.)
Second, the qualified negative proposition in Higgins-Williams does not logically imply its unqualified positive counterpart. Just because inability to work under standard oversight is no disability does not mean inability to work under nonstandard oversight is a disability.
Third, we doubt the Higgins-Williams court's reference to "standard oversight" was intended to distinguish between abusive and nonabusive supervisors in any event. The court would not fold California's large body of harassment-based constructive discharge law into FEHA discrimination law without at least some acknowledgement that it was doing so.
Fourth, a court should not create rules by implication in a field already occupied by statute. Here, FEHA defines "disability" finely. As part of its definition, a physical or medical condition must impact a major life activity, such as "working," to be considered a disability. Had the Legislature intended to equate "working" with working for an abusive supervisor, it could have done so. It did not, and as stated, no authority of which we are aware has done so either.
Finally, to inject the issue of supervisor misconduct into a FEHA accommodation claim (in contrast to a harassment claim, which De Anda does not allege) would circumvent a large body of law pertaining to harassment-based constructive discharge.
That law begins with a longstanding, fundamental policy: California gives "law-abiding employers broad discretion in making managerial decisions." (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 79-80.) Workplace misconduct becomes actionable only when it "violates fundamental principles of public policy." (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170.) De Anda does not allege constructive discharge in violation of public policy.
To prevail on such a claim, he would have had to "demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees." (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279 (Lyle).) "[A] workplace may give rise to liability when it 'is permeated with "discriminatory . . . intimidation, ridicule, and insult," [citation], that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." '" (Ibid.)
"Minor or relatively trivial adverse actions or conduct . . . cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable" under FEHA. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054.) The "law does not exhibit 'zero tolerance' for offensive words and conduct. Rather, the law requires the plaintiff to meet a threshold standard of severity or pervasiveness." (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 467.)"' "[S]imple teasing," . . . offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions of employment." '" (Id. at p. 463.) Courts must" 'filter out complaints attacking "the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing." '" (Id. at p. 464.)
"Requiring an employee to prove a substantial adverse job effect 'guards against both "judicial micromanagement of business practices," [citation] and frivolous suits over insignificant slights.'" (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.)" '[W]ork places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action.' [Citation.] If every minor change in working conditions or trivial action were a materially adverse action then any 'action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.'" (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511.) (An employee's work environment may be affected not only by conduct directed at the employee but also by the treatment of others. (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 519.) But to establish a hostile work environment caused by the treatment of others, the plaintiff generally must show that the harassment directed at others was in his immediate work environment, and that he personally witnessed it. (Lyle, supra, 38 Cal.4th at p. 285; see Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466 [an employee may "establish an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment"].) Here, De Anda does not allege he witnessed conduct directed at other employees but heard about it second hand.)
De Anda proposes to trade any consideration of the pervasiveness of employer harassment or its objective impact on the work environment for a subjective and virtually limitless definition of "disability." This would so widely expand discrimination law and so vastly oversimplify the FEHA workplace calculus that if such is to occur, the Legislature, not the courts, must be its harbinger.
In short, inability to tolerate an intolerable supervisor does not constitute a disability for FEHA purposes.
De Anda argues that even if he does not actually suffer from a disability, DWP "regarded" him as having one and "treated" him as though he had one. De Anda argues DWP is therefore liable under FEHA because of their treatment of him during the accommodation and interactive processes. We disagree.
Section 12926, subdivision (j)(4) defines "mental disability" as including "[b]eing regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult." But again, working under a particular supervisor is not a major life activity.
De Anda relies on Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34 (Gelfo) for the proposition that FEHA liability may attach where an employer has become aware of a disability based on the employer's own perception, mistaken or not, of the existence of a disabling condition. De Anda's reliance is misplaced.
In Gelfo, an employee suffered a back injury and was diagnosed as being permanently disabled. (Gelfo, supra, 140 Cal.App.4th at p. 40.) Within a year, however, his condition had resolved and he represented to his employer that he could work without job restrictions. (Id. at p. 41.) In the interim, the employee was laid off for reasons unrelated to his injury. (Id. at p. 40.) The employer later refused to rehire the employee because a review of his file mistakenly revealed medical restrictions that were incompatible with the physical demands of the work. (Id. at p. 41.)
Our colleagues in Division Eight held that "FEHA's reference to a 'known' disability is read to mean a disability of which the employer has become aware, whether because it is obvious, the employee has brought it to the employer's attention, it is based on the employer's own perception-mistaken or not- of the existence of a disabling condition or, perhaps as here, the employer has come upon information indicating the presence of a disability." (Gelfo, supra, 140 Cal.App.4th at p. 61, fn. 21.)
De Anda argues this language means that FEHA recognizes any condition as a disability so long as the employer perceives it as such, mistakenly or not. We disagree.
Gelfo's reference to an employer's "own perception- mistaken or not-of the existence of a disabling condition" pertained to the employer's observation of the condition itself, not its misconception about whether that condition constituted a disability under FEHA. In Gelfo the employer mistakenly believed the employee suffered from a disabling back condition. It was not a case where the employer observed the employee to have some condition (for example blue eyes) which the employer mistakenly thought was disabling.
B. Retaliation
De Anda contends the trial court erred in finding his retaliation claim was untimely. We disagree.
As noted, De Anda alleged defendants retaliated against him because he objected to the threat West made to him and the racist remark he made concerning Lee. This retaliation took the form of harassment by West in 2014 and by DWP's failure to reasonably accommodate De Anda's disability and engage in a timely, good faith interactive process concerning the disability. It is an unlawful employment practice to retaliate or otherwise discriminate against a person for requesting reasonable accommodation for the known physical or mental disability of an employee. (§ 12940, subd. (m)(2).)
"Under the FEHA, the employee must 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." (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.) "[I]t is 'plaintiff's burden to plead and prove timely exhaustion of administrative remedies, such as filing a sufficient complaint with [DFEH] and obtaining a right-to-sue letter.'" (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345.)
Prior to January 1, 2020, a complainant had one year to file a complaint with DFEH. (See, e.g., Acuna v. San Diego Gas &Electric Co. (2013) 217 Cal.App.4th 1402, 1412.) In 2020, Assembly Bill No. 9 extended the deadline to three years, but stated the amendment "would prohibit its provisions from being interpreted to revive lapsed claims[.]" An administrative complaint must specify the alleged unlawful act. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.)
Here, De Anda alleged West retaliated against him in 2014 by giving unwarranted negative feedback in a performance evaluation, strictly scrutinizing his work, making false charges, conducting unreasonable surveillance and investigations, instituting additional job requirements, levying an excessive workload compared to coworkers, and publicly criticizing De Anda. He alleged DWP retaliated against him by "fail[ing] and refus[ing] to reasonably accommodate [his] disabilities and engage in a timely, good faith interactive process."
De Anda never filed an administrative complaint with DFEH concerning this retaliation claim. His administrative complaint filed in 2017 pertained only to his accommodation and interactive process claims. Although DFEH represented it would amend that complaint to add a retaliation claim, it never did so. Therefore, De Anda failed to exhaust his administrative remedy before alleging retaliation against DWP.
Assuming the intake form De Anda submitted to DFEH on February 8, 2018, constitutes an administrative complaint, it was untimely. By his own admissions in the first amended complaint, West harassed him in 2014, almost four years before he complained of such to DFEH.
C. Leave to Amend
Because De Anda alleged no facts indicating he suffered a disability or timely presented a retaliation claim, the City's demurrer was properly sustained. Because he offers no cognizable disability-based theory on appeal, nor any indication that he could successfully amend his disability claims, and because none appears from the record, leave to amend his first two causes of action was properly denied.
De Anda argues that if given leave to amend his retaliation claim he could allege facts sufficient for equitable tolling, including: (1) He filed a workers' compensation claim in October 2014, which was still pending by at least 2017; (2) he pursued internal remedies with DWP, which resolved on January 13, 2017; (3) he worked within DWP's internal administrative process to locate a reasonable accommodation; and (4) DFEH misled him by telling him that it would amend his 2017 discrimination charge to add a retaliation claim.
We conclude these allegations, coupled with specific allegations concerning the racist remark De Anda reported to DWP, could conceivably cure the defect.
The equitable tolling doctrine "applies' "[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one." '" (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 100.) "Where exhaustion of an administrative remedy is mandatory prior to filing suit, equitable tolling is automatic." (Id. at p. 101.) Equitable tolling may extend to voluntary pursuits of other remedies, such as when "the employee and employer pursue resolution of any grievance through an internal administrative procedure." (Id. at p. 108.)
When a plaintiff pursues internal administrative resolution of a grievance as to one claim, the defendant's investigation of that claim will put it in a position to fairly defend against a second claim so long as the two claims are based on essentially the same set of facts. (Collier v. City of Pasadena (1983) 142 Cal.App.3d 917, 925.) In such a circumstance, the defendant is adequately protected from stale claims and deteriorated evidence so as to permit equitable tolling. (Ibid.)
Here, De Anda alleged that he filed a Worker's Compensation claim in 2014, which remained open until at least 2017, when he returned to work, and in 2017 he began seeking reasonable accommodations at DWP for work restrictions pertaining to his "actual or perceived disabilities and/or medical conditions," which efforts continue to the present.
As we have discussed, DWP owed no accommodation regarding De Anda's disability. But that does not mean informal negotiations relating to it cannot toll the limitations period on his retaliation claim. Depending on what was discussed and at issue during the internal grievance procedure concerning his purported disability, there is a reasonable possibility that De Anda could allege grounds for equitable tolling of his retaliation claim.
De Anda should therefore be given a chance to allege sufficient facts to bring his retaliation claim within the umbrella of his pursuit of informal remedies as to his disability claims. D. Prima Facie Retaliation Claim
DWP observes that the trial court declined to address its demurrer to De Anda's retaliation claim on substantive grounds and argues on appeal that De Anda failed to allege the three elements of a cause of action for retaliation, i.e., that he engaged in protected activity and suffered an adverse employment action, and that a causal link exists between the protected activity and the adverse action. (See Yanowitz v. L 'Oreal USA, Inc., supra, 36 Cal.4th at pp. 1060-1061.) De Anda argues the trial court acknowledged that he adequately alleged the first element- protected activity-and his complaint sufficiently alleges the second and third elements as well.
Given our holding that De Anda should be granted leave to amend his retaliation claim, we need not discuss whether he sufficiently alleged a retaliation claim within the meaning of Yanowitz. In particular, we express no opinion about (1) whether an employee's opposition to an isolated racial remark uttered by a supervisor is protected conduct within the parameters of FEHA, (2) whether that remark can be attributed to DWP, or (3) whether, if opposition to the remark did not constitute opposition to an unlawful employment practice, an employee could nonetheless make out a prima facie case by showing that he reasonably believed he was opposing a FEHA violation.
DISPOSITION
The judgment is reversed in part and affirmed in part. The order sustaining DWP's demurrer to De Anda's third cause of action without leave to amend is reversed and the trial court directed to grant leave to amend that cause of action. The order sustaining DWP's demurrer to De Anda's first two causes of action without leave to amend is affirmed.
Each side is to bear its own costs on appeal.
We concur: BENDIX, Acting P. J., WEINGART, J.