Sianez v. Emp't Dev. Dep't

1

LARISSA SIANEZ, Plaintiff and Appellant, v. EMPLOYMENT DEVELOPMENT DEPARTMENT, Defendant and Respondent.

B322701

California Court of Appeals, Second District, Fifth Division

March 30, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. CV19004066, Sonny S. Sandhu, Judge. Affirmed in part and reversed in part.

Bohm Law Group, Lawrance A. Bohm, and Zane E. Hilton for Plaintiff and Appellant.

Rob Bonta, Attorney General, Chris A. Knudsen, Senior Assistant Attorney General, William T. Darden, Supervising Deputy Attorney General, and Kelsey E. Papst, Deputy Attorney General, for Defendant and Respondent.

BAKER J.

Defendant and respondent Employment Development Department (EDD) fired plaintiff and appellant Larissa Sianez (Sianez). She appealed her termination to the State Personnel Board (the Board). The Board affirmed the termination after a multi-day evidentiary hearing in front of an Administrative Law Judge (ALJ). Sianez did not seek a writ of mandamus to overturn the Board's decision and instead filed a civil action in superior court asserting claims against EDD for discrimination, various forms of retaliation, and failure to accommodate. EDD demurred to the operative complaint, primarily arguing that Sianez's failure to exhaust her judicial remedies (the failure to pursue mandamus relief) precluded her causes of action. The trial court sustained the demurrer in its entirety, and we consider whether Sianez's claims are indeed precluded by the related doctrines of judicial exhaustion and issue preclusion.

I. BACKGROUND

A Sianez's Employment with EDD

Sianez began working at EDD as an employment program representative in July 2009. In March 2013, she was promoted to full-time employee. Shortly after Sianez became a full-time employee, she began to have difficulties with her employer, some of which we catalog in the discussion that follows.^[1]

1. Prior settlements with EDD

A dispute arose between Sianez and EDD over whether EDD violated a memorandum of understanding when it denied Sianez's request for a flexible work schedule. In October 2015, Sianez and EDD entered into a settlement agreement to resolve the dispute. Pursuant to the agreement, Sianez released EDD from any claims existing as of the date of the settlement, "in connection with or arising out of the actions taken by [EDD] regarding" the dispute.

Later, in May 2016, EDD issued Sianez a Notice of Adverse Action suspending her for 20 working days. The grounds for the suspension were inefficiency, inexcusable neglect, and misconduct from July 2013 through June 2015. In November 2016, however, the Board approved a settlement agreement between Sianez and EDD. Pursuant to the agreement, Sianez released all claims existing as of the date of the settlement in connection with the Notice of Adverse Action and agreed to withdraw any grievances or complaints "which arise out of the actions taken by [EDD] in connection with" that notice.

2. Subsequent events

These two settlement agreements did not mark the end of the conflict between the parties. Sianez was issued corrective action memoranda alleging various instances of misconduct (e.g., failure to follow instructions, absenteeism, and disruptive behavior) in July, August, and September 2017.

Sianez then took protected leave for a claimed serious health condition approximately eight to ten times each month from October 2017 through January 2018. Sianez's manager issued her a corrective action memorandum based on her decision to take leave. Sianez protested that EDD retaliated against her for taking protected leave and for joining in complaints made by a co-worker.

In November 2017, Sianez was denied a merit salary adjustment because she "failed to follow instructions, failed in performing her duties, and was insubordinate" for the period from July 13, 2017, through November 6, 2017.^[2] Sianez responded by filing a whistleblower retaliation complaint with the Department of Industrial Relations.

Early in 2018, Sianez's manager MeShan Record (Record) confirmed Sianez was eligible for leave under the Family and Medical Leave Act (FMLA). Record asked Sianez to clarify the duration of her FMLA leave. Sianez provided a doctor's note that stated the leave was to be "as needed" and later filed a discrimination complaint alleging Record discriminated against Sianez because of her disability and retaliated against her for taking protective leave. Record subsequently issued Sianez a corrective action memorandum alleging unacceptable conduct and attendance.

On March 21, 2018, EDD terminated Sianez's employment, effective March 30, 2018. Following her termination, Sianez filed complaints with the State Personnel Board, the Department of Fair Housing and Employment (DFEH), and the Equal Employment Opportunity Commission. Sianez subsequently received right to sue notices from the DFEH.

B. The Administrative Proceedings^[3]

1. The prehearing statement

The record does not contain a copy of Sianez's administrative complaint regarding her termination. It does, however, contain a copy of her first amended prehearing settlement conference statement, which indicates Sianez asserted affirmative defenses of retaliation, namely, whistleblower retaliation; retaliation for filing complaints with the DFEH; retaliation for filing discrimination complaints with EDD's Equal Employment Opportunity office; and retaliation for filing a workers' compensation claim, requesting reasonable accommodation, exercising her rights under the FMLA and California Family Rights Act (CFRA), and participating in an investigation of a Department of Industrial Relations complaint.

The prehearing statement also summarized Sianez's anticipated testimony, which indicated she intended to testify (among other things) about her asserted disability, the disability discrimination complaints she submitted to EDD's equal employment opportunity office, her requests for reasonable accommodation and leave under the FMLA and CFRA, her request for a shorter lunch period, and her continued need to park in front of the EDD building where she worked.

2. The administrative decision

In August 2018, a Board ALJ held an evidentiary hearing and rendered a proposed decision. The ALJ sustained charges of inexcusable neglect of duty, insubordination, dishonesty, discourteous treatment, willful disobedience, misuse of state property, and other failure of good behavior.

The ALJ found: "A preponderance of the evidence established [Sianez] was an unreliable employee who did not report to work on a regular basis, and was consistently late when she did report to work. [Sianez] also refused to comply with departmental policies and supervisor directives, and was rude to staff despite repeated counseling, instruction, and prior discipline." The ALJ further found that "the likelihood [Sianez] will engage in the same behavior is high since she denies wrongdoing and does not appear to understand or appreciate the significance of her actions. For instance, at the hearing, [Sianez] argued more than once that most of her absences were excused. Nevertheless, the evidence established [Sianez] routinely and defiantly failed to follow the Attendance and Break Policy and the call-in procedures when she was absent or tardy. A failure to accept and admit responsibility for acts of misconduct makes it more likely that such misconduct will recur. [Citation.] [¶] [Sianez] has also proven herself to be untrustworthy, and it is well-established that dishonesty is not an isolated act; it is more a continuing trait of character. [Citations.] [¶] Also relevant is [Sianez's] prior discipline.... It is not in the Department's best interest to retain an employee who engages in misconduct, is repeatedly subject to discipline, and repeatedly fails to follow a supervisor's directives. For all these reasons, dismissal is an appropriate penalty ...."

The Board adopted the ALJ's proposed decision.

C. Sianez's Civil Suit Against EDD

Sianez filed the operative first amended civil complaint in April 2021. It alleges causes of action for violation of the CFRA (first cause of action), Labor Code sections 98.6 and 1102.5 (seventh cause of action), and the California Whistleblower Retaliation Act (eighth cause of action). The operative complaint also alleges various Fair Employment and Housing Act (FEHA) violations: disability discrimination (second cause of action), failure to accommodate (third cause of action), failure to engage in the interactive process (fourth cause of action), retaliation (fifth cause of action), and failure to prevent harassment, discrimination, and/or retaliation (sixth cause of action).

The causes of action for violation of the CFRA; disability discrimination; retaliation; and failure to prevent harassment, discrimination, and/or retaliation allege Sianez was harassed, discriminated and retaliated against for taking CFRA-protected leaves of absence, because of her physical or mental disabilities, and in response to her complaints of disability and gender related harassment and discrimination. The failure to accommodate and failure to engage in the interactive process causes of action allege Sianez was able to perform the essential duties of her position with reasonable accommodation but EDD denied her accommodation requests and refused to participate in a timely and good faith interactive process. The statutory claim for violation of Labor Code sections 98.6 and 1102.5 alleged Sianez made protected complaints about topics like assault and an unsafe working environment and EDD unlawfully retaliated against her. The cause of action for violation of the California Whistleblower Protection Act (Government Code section 8547.8^[4]...