Guatemala v. Regus Mgmt. Grp.

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VIVIRIANA GUATEMALA, Plaintiff and Appellant, v. REGUS MANAGEMENT GROUP, LLC, et al., Defendants and Respondents

B316724

California Court of Appeals, Second District, Second Division

August 25, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. 19STCV07112. Dennis J. Landin, Judge. Affirmed.

Gusdorff Law, Janet Gusdorff; Reisner &King, Adam Reisner, Tessa King and Greg Taylor for Plaintiff and Appellant.

Shankman Leone, Kendra D. Presswood; Quarles &Brady, E Joseph Connaughton and Ashley D. Kearney for Defendants and Respondents.

LUI P. J.

Viviriana Guatemala appeals the judgment in her employment suit in favor of respondents Regus Management Group, LLC (Regus) and Erika Deras. On de novo review, we uphold the order sustaining demurrers without leave to amend because appellant's Fair Employment and Housing Act (FEHA) claims are untimely. We also conclude that summary judgment was properly granted on appellant's whistleblower and wrongful termination claims. She did not report illegal activity, did not show a disability affecting a major life activity, and did not notify Regus of a disability or request an accommodation. At most, the evidence shows appellant was terminated because she was constantly late for work. We affirm the judgment.

FACTS AND PROCEDURAL HISTORY

Appellant's Complaint

On February 28, 2019, appellant filed a lawsuit alleging FEHA violations and other claims arising from the termination of her employment at Regus on March 9, 2017. She applied for and received a right-to-sue letter in February 2019. Respondents told appellant that her statutory causes of action are time-barred and offered to waive costs as to those claims if she dismissed them voluntarily. Appellant refused to dismiss the claims.

Appellant's third amended complaint (TAC) is the operative pleading.^[1] She alleges that in 2016, she informed her supervisor, Deras, that she has panic attacks and anxiety. In 2017, when appellant told Deras that she was post-operatively restricted to lifting items under five pounds, Deras replied "Fine, I'll do it myself." Over a two-week period, Deras would "leer" and "yell and scream" at appellant because of her disability. Appellant claims Deras used appellant's company credit card to "embezzle" company funds by purchasing lunch and personal items.

On March 9, 2017, Regus terminated appellant's employment. When appellant protested, Human Resources (HR) asked her to provide proof that medical leave affected the decision to terminate. Though she complained to several managers, Regus did not make a good faith effort to determine if her absences were protected.

In February 2019, counsel demanded that Regus reinstate appellant's employment. Regus did not take corrective measures or reinstate appellant. She asserts that respondents were motivated by her actual or perceived disabilities and need for accommodations and medical leave.

Respondents' Demurrers

Respondents demurred to the TAC. They argued that appellant's FEHA claims are barred by a one-year limitation period; other claims- for emotional distress, harassment, whistleblowing and retaliation- fail as a matter of law. Respondents asked the court to sustain demurrers without leave to amend and award sanctions.

In opposition, appellant asserted that her FEHA causes of action are preserved by the "continuing violations doctrine." She believed she sufficiently pleaded outrageous conduct; severe and pervasive harassment; retaliation; and a whistleblower violation.

The court sustained demurrers to appellant's FEHA claims without leave to amend, finding that she did not make a timely administrative claim or show continuing violations to toll the limitations period. The court sustained demurrers to appellant's intentional infliction of emotional distress claim because she did not allege outrageous conduct. ^[2] It overruled demurrers to her whistleblower claim.

Motion For Summary Judgment

Respondents asked the court to summarily adjudicate appellant's remaining claims of a whistleblower violation and wrongful termination in violation of public policy. Appellant countered with her own motion for summary adjudication of her wrongful termination claim.

The record shows that appellant began working for Regus in 2015 as a community service representative. After being promoted to manager in July 2016, she was responsible for running the day-to-day operations of a business center, greeting customers, managing complaints, reviewing accounts, ensuring proper billing, and overseeing employees. She reported to Deras.

Soon after her promotion, appellant was repeatedly late to work. Deras moved appellant's start time from 8:30 to 9:00 a.m., after appellant said it was hard to wake up because she stays up late at night, but appellant continued to arrive late. On July 18, 2016, Deras reminded appellant to be on time; appellant wrote, "I understand and accept any consequences that may follow due to tardiness, which may include a write up. I take full responsibility." Appellant did not cite a medical reason for her tardiness or claim a disability.

On August 11, 2016, appellant wrote to Deras that anxiety caused her "to pull over to the side for a few minutes." Appellant acknowledged being warned about tardiness, and "understand[s] and accept[s] responsibility for disciplinary action." Deras did not perceive appellant's email as a claim of medical disability or request for an accommodation. Appellant did not tell Deras she had a disability.

Appellant was placed on a performance improvement plan (PIP) in August 2016, owing to excessive absenteeism, tardiness, and subpar performance, despite being coached on punctuality and attendance. She persistently arrived late in September and October 2016, but noted that Deras told her to come in late on two days. Deras emailed appellant at the end of September, asking, "Is there an issue on why you're not able to come in on time?" Appellant did not respond or claim a medical disability.

Appellant was placed on a second PIP in October 2016, for tardiness and unauthorized overtime, and warned that further disciplinary action could lead to termination. She asserts that she did not receive the second PIP and Deras forged her signature on it. She continued to be tardy from October 2016 into January 2017. Her panic attacks increased to sometimes three or four times per week. The record does not show that she told anyone at Regus that she panicked frequently or that it caused her tardiness or affected her ability to work.

Appellant texted Deras on January 5, 2017, to say she had anxiety that was "a little worse lately" but did not say she was unable to work. On January 19 to 20, 2017, Deras told appellant to "go home" after appellant texted that she felt "like crap." Appellant did not specify why she felt ill, but the exchange suggests a communicable illness-not anxiety-because Deras clarified that "I don't want to get sick and I know that [a coworker] doesn't want to get sick."

Appellant testified that she felt "anxious and depressed" and "wanted to take a few days off." She agrees that she was repeatedly reprimanded for tardiness and needed to be on time. Her tardy arrivals "could have been [because] I was having a panic attack, and I pulled over to the side until I could calm down." She did not seek psychological counseling.

Appellant was placed on a third PIP for excessive tardiness on January 11, 2017, and warned that she could be terminated. She asserts that she did not receive the third PIP and someone forged her signature on it. On January 25, 2017, appellant was counseled in person. Later that day, she texted Deras asking if she could work fewer hours without losing her benefits "because insurance is so important for me with all my medical things going on." Deras replied that appellant could work as an associate but appellant was not interested. Appellant wrote that the employee handbook indicated that she could have a reduced schedule, keep her same pay rate and retain benefits under the Family Medical Leave Act (FMLA) for a "serious health condition." Deras did not respond to appellant's text, forward it to HR, or help her apply for an accommodation. Deras testified that appellant had to take the matter up with HR.

Appellant admittedly did not contact HR to request medical leave for anxiety.^[3] However, two days later, on January 27, 2017, she asked Regus's benefits coordinator about taking medical leave for cosmetic enhancement surgery. The coordinator provided a FMLA flyer and told her to contact Regus's medical leave administrator. Although appellant did not follow proper procedures, she received 13 days off for the surgery. A doctor authorized her return to work on February 22; she was restricted to lifting less than five pounds.

After returning, appellant continued to be tardy to work and claim unauthorized overtime. She was counseled in February and March 2017. She points to a text message on February 3, 2017, saying she had to pull over on the way to work due to a panic attack.

On March 8, 2017, appellant asked Deras not to use appellant's company credit card for food delivery, adding, "I do not want to get in trouble for something that is not covered." Appellant did not accuse Deras of violating any law.^[4] Regus does not approve of personal use of its cards but it is not a problem if the charge is reimbursed. In a declaration, appellant avers that she believed Deras was violating the law. This belief was not communicated to respondents.

On March 9, 2017, HR manager Jennifer Baines informed appellant that her employment was terminated for violating Regus's attendance policy. Her tardiness, not her performance at work, led to...