Filed 7/11/14 Corona v. Goodland Holdings CA2/4
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.




                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                         SECOND APPELLATE DISTRICT

                                                        DIVISION FOUR




MARIA JESSIE CORONA,                                                          B249862

          Plaintiff and Appellant,                                            (Los Angeles County
                                                                              Super. Ct. No. BC484990)
          v.

GOODLAND HOLDINGS, INC. et al.,

          Defendants and Respondents.



          APPEAL from a judgment of the Superior Court of Los Angeles County,
Barbara A. Meiers, Judge. Affirmed in part, reversed in part.
          Law Office of Mark J. Leonardo and Mark J. Leonardo, for Plaintiff and
Appellant.
          LightGabler, Jonathan Fraser Light and Anne M. Larsen, for Defendants and
Respondents.
       This case illustrates problems encountered in an employment discrimination case
when the defendants’ arguments are more suited to summary judgment than to
disposition on a motion for judgment on the pleadings (or on general demurrer). As we
note below, the trial court made its own motion for judgment on the pleadings, which was
then followed by defendants’ motion for the same relief.
       Plaintiff Maria Jessie Corona appeals from a judgment on the pleadings in her
action for employment discrimination, harassment, and related torts. Plaintiff argues that
she adequately pled causes of action for relief under the California Fair Employment and
Housing Act (Gov. Code, § 12940 et seq.,1 FEHA) and related torts. Alternatively, she
contends her revised proposed second amended complaint remedied any pleading
deficiencies of her first amended complaint, and that she should be allowed to file that
pleading.
       We find the allegations of the first amended complaint to be sufficient to state
causes of action for discrimination on all three grounds alleged; harassment based on
physical condition or disability; failure to prevent discrimination; wrongful termination in
violation of public policy; and intentional infliction of emotional distress. We conclude
the trial court erred in denying plaintiff an opportunity to amend her cause of action for
breach of the covenant of good faith and fair dealing as she sought to in her revised
proposed second amended complaint.
       Defendant Kim MacKaye has demonstrated that she cannot be held personally
liable for discrimination as alleged in the first and seventh causes of action for
discrimination and for failure to prevent harassment and discrimination. Judgment was
proper on the causes of action for harassment based on gender and national origin or
ethnicity and negligent infliction of emotional distress.




       1   Statutory references are to the Government Code unless otherwise indicated.

                                              2
                      FACTUAL AND PROCEDURAL SUMMARY
       Plaintiff is Hispanic. She was hired in August 2006 by Goodland Holdings, Inc.
(Goodland) to work in accounts payable. She remained in that position until spring 2011.
Beginning in January 2011 she also held the same position for Hungry Heart Media, Inc.,
(Hungry Heart) which shared the location used by Goodland. Plaintiff alleges that at all
relevant times, her supervisor at Goodland was Kim MacKaye,2 who also supervised her
with respect to work for Hungry Heart. Goodland, Hungry Heart, and MacKaye are
named defendants in plaintiff’s action, and we refer to them collectively as “defendants.”
       Plaintiff’s action against defendants is based on three categories of conduct:
1) denying her requests for raises when other non-Hispanic male co-workers were
granted raises; 2) allowing non-Hispanic and male co-workers more liberal use of sick
leave and vacation time than was afforded to plaintiff; and 3) discouraging her from using
sick leave for physical conditions or disabilities. We focus on the allegations of the first
amended complaint, which was the charging pleading at the time the court granted the
motion for judgment on the pleadings. Plaintiff also alleged extensive misconduct by
MacKaye related to financial improprieties and abuse of sick leave and vacation time by
MacKaye, but does not allege a “whistle-blower” cause of action.
A. Raises
       Plaintiff alleged that between 2009 and 2010, she asked for a raise, but was told by
MacKaye that her pay would be reduced instead. At that time, plaintiff learned that
MacKaye did not give herself a pay cut, although executives of Goodland were to do so
because of declining business. She alleged that Hispanic co-worker Letty Shiff quit in
September 2010 because she could no longer tolerate MacKaye’s “harassment, nitpicking
and degrading comments”. According to the complaint, MacKaye told plaintiff that she
had not given Shiff a raise in the four years she supervised her, and wanted to fire her but
the owners would not allow her to do so. Plaintiff took over many of Shiff’s former
duties, but was not given a raise by MacKaye to compensate for the extra work, even


       2   MacKaye also was alleged to have been chief financial officer for Goodland.

                                              3
though that was suggested by a production manager for the company. She continued to
request raises thereafter, but MacKaye denied each request. Three other employees
received raises during this period.
       In January 2011, plaintiff told MacKaye she was going to quit to take a higher
paying job. MacKaye’s initial reaction was that the company could not give her a raise,
so she would have to quit. Minutes later, MacKaye offered plaintiff a raise, which was
later set at $75 a week. After plaintiff did not respond within three days, MacKaye
withdrew the offer.
B. Disparate Treatment and Harassment Based on Ethnicity and Gender
       Plaintiff alleged that MacKaye favored a Caucasian male employee, Chris Jones,
giving him special treatment including allowing him flexible hours, abuse of sick leave,
loans on terms more favorable than those offered to other employees, and larger bonuses.
MacKaye disregarded Jones’ intoxication at work. In contrast, MacKaye did not
accommodate a request by plaintiff to take sick leave to care for her child, only the
second occasion in two years that she sought to take sick leave. Plaintiff alleged that
MacKaye treated her more harshly than she treated Jones. She alleged that MacKaye
expressed disdain for women.
       Plaintiff also alleged: “Plaintiff observed that MACKAYE treated employees
differently based on the employees’ race. Specifically, MACKAYE, on multiple
occasions, made comments to Plaintiff and Letty Shiff (who was also Hispanic), and
other Hispanic employees about their Hispanic heritage in a demeaning way. On one
occasion, there was food leftover on the kitchen counter and there were flies on the food
and an employee that MACKAYE thought was Mexican was waiving [sic] the flies off
the food and MACKAYE said ‘you should be used to that, don’t they have flies on the
food in Mexico? On another occasion, MACKAYE boasted that she knew Spanish, and
then said the Spanish words she knew: ‘clean,’ ‘pick-up’ and ‘trash.’ On another
occasion several workers were going to a Mexican restaurant after work and MACKAYE
asked Plaintiff to go. When Plaintiff politely declined, MACKAYE responded, ‘Really,
I thought that would be something you would be in to [sic] because they have tacos.’”

                                             4
C. Disparate Treatment and Harassment Based on Disability or Physical Condition
       Plaintiff alleged that beginning in November 2010, she experienced anxiety or
panic attacks. She suffered an additional 12 attacks, all precipitated by MacKaye’s
conduct. Plaintiff continued to work rather than calling in sick because she feared
reprisal by MacKaye. She also alleged she had medical issues with a thyroid condition
and a heart murmur, but worked through them because she feared reprisal by MacKaye if
she requested sick leave. MacKaye told other workers that plaintiff was a
hypochondriac. Plaintiff alleged: “Plaintiff’s co-workers informed Plaintiff that on the
occasions when Plaintiff did call in sick, MACKAYE would be very angry and annoyed,
and would refer to Plaintiff as a hypochondriac.” On one occasion, in March 2011,
MacKaye told plaintiff she could not call in sick, although plaintiff had a sinus infection,
sore throat and bad cough. When plaintiff insisted on staying home, MacKaye sent
numerous text messages and voice mails to plaintiff about work issues throughout the
day. As a result, plaintiff suffered another anxiety attack.
       In March 2011, plaintiff’s thyroid physician recommended that she see a
psychologist. She did so. The psychologist recommended that plaintiff remain off work
for the rest of April 2011. At the end of April, he told her she still could not work and
recommended that she stay off work until June 6, 2011. Defendants said they would not
hold her job open past that date.
       Plaintiff alleged that she “could not return to work thereafter because of the stress
caused by Defendant MACKAYE’s discriminatory conduct toward her and was
constructively terminated as a result thereof.”
       The California Department of Fair Employment and Housing issued right to sue
letters in May 2011 to plaintiff on her complaints of discrimination by each of the
defendants. In that month, plaintiff filed her original complaint in the Los Angeles
Superior Court. That complaint was not served, and was replaced by the first amended
complaint filed in July 2012. It alleged causes of action for discrimination, harassment,
and failure to prevent discrimination or harassment in violation of FEHA, section 12940,
subdivisions (a), (j) and (k). Based on the same conduct, plaintiff also alleged causes of

                                              5
action for wrongful termination in violation of public policy, breach of the implied
covenant of good faith and fair dealing, and intentional and negligent emotional distress.
       Defendants answered the first amended complaint, to which plaintiff demurred.
An amended answer was filed. The court issued a minute order, sua sponte, setting a
hearing on whether judgment on the pleadings was appropriate “given that the complaint
in this case does not appear to state a cause of action.” The court set a briefing schedule
on the issue. Defendants then filed their own motion for judgment on the pleadings in
support of the court’s motion. Plaintiff filed her opposition on the date set by the trial
court for replies to any initial briefing on the issue. Defendants filed a reply noting that it
had not yet received a response from plaintiff.
       The next day, plaintiff lodged a proposed second amended complaint,3 and then a
revised proposed second amended complaint. The court held a hearing on the motion for
judgment on the pleadings, and took the matter under submission. The record on appeal
does not include a reporter’s transcript of the hearing. The court found plaintiff’s
opposition untimely, but apparently considered it: “even were this not the case, the
existing complaint and the proffered amended complaint (offered and lodged/‘received’
but not filed) of this date both fail to plead a cause of action.”
       The court characterized plaintiff’s complaint as alleging that MacKaye was
cheating the company and was taking more perks than plaintiff was given. Since plaintiff
did not allege a whistle-blower theory, allegations that MacKaye had cheated the other

       3 Defendants argue that the proposed second amended complaint is not properly
before us on appeal because it was not lodged with the trial court, and therefore cannot be
a part of the record on appeal. Plaintiff asserts in her reply brief, with no citation to the
record, that the proposed second amended complaint was submitted to the trial court
during argument on the judgment on the pleadings issue. She asserts that the court
reviewed it during the hearing. Subsequently she submitted a revised proposed second
amended complaint, which was lodged with the court, and which she claims the court
considered. We need not resolve this issue because plaintiff does not base any argument
on appeal on the proposed second amended complaint. She argues instead that the
allegations of the revised proposed second amended complaint demonstrate that she
could allege viable causes of action and that the court erred in denying leave to amend.
We review the revised proposed second amended complaint as it bears on that issue.

                                               6
defendants were not found to be a basis for an action by plaintiff. The court also
concluded that plaintiff was not entitled to the same “‘perks’” as MacKaye. The court
found that plaintiff had failed to allege any discriminatory or harassing actions by
defendants in 2011. Nor did she allege any adverse job action. As to the allegation of
constructive termination, the court found that plaintiff had failed to plead that she
attempted to return to work in June 2011, or that she had been told by her physician that
she could not do so.
       The court granted judgment on the pleadings, ruling that plaintiff had failed to
allege a valid cause of action for harassment or discrimination and had “demonstrated
that she cannot do so even were leave to amend to be granted.” Judgment was entered in
favor of defendants. Plaintiff filed a timely notice of appeal from the judgment.


                                        DISCUSSION
                                               I
       “The standard of review for a motion for judgment on the pleadings is the same as
that for a demurrer. [Citation.]” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 416.)
“‘We review the complaint de novo to determine whether the complaint states a cause of
action, as a matter of law.’ [Citation.]” (Caldera Pharmaceuticals, Inc. v. Regents of
University of California (2012) 205 Cal.App.4th 338, 350 [judgment on the pleadings].)
“In conducting this review, we accept, and liberally construe, the truth of the complaint’s
properly pleaded factual allegations, but not contentions, deductions, or conclusions of
fact or law. [Citations.] We are not concerned with [the plaintiff’s] ability to prove its
allegations, only whether its second amended complaint shows that it makes out a claim
for some relief, even if an amount less than alleged. [Citations.]” (Ibid; see also Stueve
Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 310 [“‘A demurrer
challenges only the legal sufficiency of the complaint, not the truth of its factual
allegations or the plaintiff’s ability to prove those allegations. [Citation.]’”].)




                                               7
                                               II
       We begin our analysis with plaintiff’s claims of employment discrimination based
on ethnicity or national origin, gender, and disability.
       It is an unlawful employment practice for an employer “to discriminate against [a]
person in compensation or in terms, conditions, or privileges of employment” based on
that person’s race, ancestry, national origin, physical disability, medical condition, or
gender. (§ 12940, subd. (a).) FEHA is to be construed liberally for the accomplishment
of its purposes. (§ 12993, subd. (a); Harris v. City of Santa Monica (2013) 56 Cal.4th
203, 223 (Harris).) “In general, there are two types of illegal employment discrimination
under FEHA: disparate treatment and disparate impact. [Citation.]” (Jones v.
Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1379 (Jones);
McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1533–1534.)
Plaintiff’s claims are for disparate treatment, i.e., that defendants treated her less
favorably than others because of her ancestry or national origin, physical disability or
medical condition, or gender.
       California courts have employed the burden shifting approach of McDonnell
Douglas Corp. v. Green (1973) 411 U.S. 792 to claims for disparate treatment
employment discrimination. “Based on the inherent difficulties of showing intentional
discrimination, courts have generally adopted a multifactor test to determine if a plaintiff
was subject to disparate treatment. The plaintiff must generally show that: he or she was
a member of a protected class; was qualified for the position he sought; suffered an
adverse employment action; and there were circumstances suggesting that the employer
acted with a discriminatory motive. ([Guz v. Bechtel National Inc. (2000) 24 Cal.4th
317,] 354–355 [(Guz)]), adopting the test applicable to federal discrimination claims in
accordance with McDonnell Douglas Corp. v. Green[, supra,] 411 U.S. 792.)” (Jones,
supra, 152 Cal.App.4th at p. 1379.)4 This constitutes a prima facie showing which gives



       4 Once this prima facie case is made, the burden shifts to the employer to show a
legitimate nondiscriminatory reason why the plaintiff was treated differently. Then the

                                               8
rise to a presumption of discrimination.5 (Guz, supra, 24 Cal.4th at p. 355; Reeves v.
Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 112.)
       We first dispose of defendants’ argument that “An essential element of a cause of
action for both employment discrimination and harassment is conduct sufficiently severe
or pervasive that it alters the conditions of employment and creates a work environment
that is hostile or abusive to employees. Miller v. Department of Corrections (2005) 36
Cal.4th 446, 462 [(Miller)].” While this is a requirement for a cause of action for
harassment, as we discuss below, there is no authority that this is an element of a cause of
action for discrimination. The case cited by defendants does not support the proposition
stated. In Miller, the Supreme Court reiterated that “claims for sexual discrimination and
sexual harassment are distinct causes of action, each arising from different provisions of
the FEHA.” (Id. at p. 460, fn. 5; see also Roby v. McKesson Corp. (2009) 47 Cal.4th 686,
705–709 [explaining distinctions between discrimination and harassment claims under
FEHA].) The court explained that it analyzed the case principally under the law
applicable to sexual harassment. (Ibid.)
       “A plaintiff’s burden in making a prima facie case of discrimination is not
intended to be ‘onerous.’ (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S.
248, 253 [‘The burden of establishing a prima facie case of disparate treatment is not
onerous.’].)” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 322.) In the
context of judgment on the pleadings, the low threshold for alleging a prima facie case of
discrimination is significant.
       Here, plaintiff alleged that she is protected by FEHA by reason of her national
origin or ancestry, physical condition or disability, or gender. She alleged that she


plaintiff would have to show that the nondiscriminatory reason put forth by the employer
was a pretext and that the true reason for the adverse employment action was
discriminatory intent. (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166
Cal.App.4th 952, 991.)

       5At trial, this presumption is “‘legally mandatory’” although it is rebuttable.
(Guz, supra, 24 Cal.4th at p. 355.)

                                             9
successfully performed her job duties throughout her tenure, and that she was treated less
favorably than other employees who had different ancestry and gender, and who did not
have a physical condition or disability. This was manifested, she claims, in several
conditions of employment, including raises and the application of rules regarding the use
of sick leave and vacation time, which would violate FEHA’s prohibition of
discrimination “in compensation or in terms, conditions, or privileges of employment.”
(§ 12940, subd. (a).)
       We must take all properly pleaded allegations of the first amended complaint as
true for purposes of review of a motion for judgment on the pleadings. We conclude they
are sufficient to state prima facie cases of discrimination on all three bases claimed by
plaintiff. Other appellate courts have applied the standards applicable in reviewing a
ruling sustaining a demurrer to conclude that an allegation of a prima facie case of
discrimination requires reversal. In Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th
1331, we reversed a judgment of dismissal based on a ruling sustaining a demurrer,
finding that the complaint stated causes of action for discrimination under FEHA. It held
plaintiff’s allegation that she was fired because she was pregnant and unable to work
during a high risk pregnancy, was sufficient for her causes of action for sex
discrimination and physical disability discrimination under FEHA. (Id. at p. 1340.)
       Similarly, in Rope v. Auto-Chlor System of Washington, Inc. (2013) 220
Cal.App.4th 635 (Rope), the court reversed a demurrer sustained without leave to amend
on the ground that the plaintiff had pleaded “minimally sufficient facts” to state a prima
facie case of disability by association brought by a plaintiff who planned to take a leave
of absence in order to donate a kidney to his sister. He alleged that he requested the
leave, and that he was terminated two days before the leave took effect on a pretext of
poor performance, raising a reasonable inference that the employer acted preemptively to
avoid the expenses stemming from the plaintiff’s association with his disabled sister. (Id.
at pp. 657–658.)
       At oral argument, counsel for defendants argued that no adverse employment
action was taken against plaintiff because her request for medical leave was

                                             10
accommodated and she chose to file her claim with DFEH before the allowed leave time
expired. Defendants correctly point out that the allegations of the complaint do not
support any claim that plaintiff was wrongly denied medical leave in 2011. Plaintiff
alleged that her psychologist recommended leave for the month of April 2011. At the
end of the month, he told plaintiff she was not ready to return to work and should remain
off work through June 6, 2011. The complaint alleged: “Defendants indicated they
would not hold Plaintiff’s job past that date.” The complaint alleged that plaintiff filed
her discrimination charges with DFEH on May 21, 2011.
       But plaintiff’s theory is not that she was wrongly denied medical leave, but rather
that she was constructively discharged. She alleged: “Plaintiff could not return to work
thereafter [after the medical leave] because of the stress caused by Defendant
MACKAYE’s discriminatory conduct toward her and was constructively terminated as a
result thereof.”
       “‘Constructive discharge, like actual discharge, is a materially adverse
employment action.’ [Citation.] ‘Constructive discharge occurs when the employer’s
conduct effectively forces an employee to resign. Although the employee may say “I
quit,” the employment relationship is actually severed involuntarily by the employer’s
acts, against the employee’s will. As a result, a constructive discharge is legally regarded
as a firing rather than a resignation. [Citation.]’” (Steele v. Youthful Offender Parole Bd.
(2008) 162 Cal.App.4th 1241, 1253 [employing the standard of Turner v. Anheuser
Busch (1994) 7 Cal.4th 1238, 1244-1245 (Turner), for constructive discharge].)
       “[T]he standard by which a constructive discharge is determined is an objective
one—the question is ‘whether a reasonable person faced with the allegedly intolerable
employer actions or conditions of employment would have no reasonable alternative
except to quit.’ [Citations.]” (Turner, supra, 7 Cal.4th at p. 1248.) “‘[T]he adverse
working conditions must be so intolerable that any reasonable employee would resign
rather than endure such conditions.’ [Citation.]” (Id. at p. 1247.)
       Whether “‘conditions were so intolerable as to justify a reasonable employee’s
decision to resign” is normally a question of fact.’” (Vasquez v. Franklin Management

                                             11
Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 827.) “The determination that a
reasonable employee would have been compelled to quit is ‘quintessentially a jury
function.’ [Citation.]” (Page v. Mira Costa Community College Dist. (2009) 180
Cal.App.4th 471, 498.)
       Plaintiff has alleged circumstances from which a reasonable trier of fact could find
that her working conditions were so intolerable that a reasonable person in her position
would be compelled to resign. She alleged that she was treated less favorably than
Caucasian employees, was denied the use of sick leave when it was warranted, and was
harassed based on her ethnicity, as we discuss below. She alleged that her treatment by
MacKaye caused her to suffer 13 anxiety attacks with high blood pressure. Although
plaintiff suffered from a thyroid problem and heart murmur, MacKaye told others that
plaintiff was a hypochondriac. As a result, to avoid such mistreatment, plaintiff went to
work ill rather than using her sick leave.
       Plaintiff further demonstrated that she could amend her complaint to allege
constructive discharge through the allegations in her revised proposed second amended
complaint. She alleged that MacKaye was aware of her medical conditions, which
included asthma, hypothyroidism, and mental health and anxiety issues. Due to the stress
of the panic attacks caused by MacKaye, plaintiff would vomit. MacKaye allegedly
responded by rolling her eyes and making faces at her. Plaintiff’s hair sometimes fell out
in large clumps. MacKaye would tease plaintiff about being sick again and make fun of
her, telling her that her health issues “were only in her head.” When plaintiff told
MacKaye she had vomited because of increased blood pressure, MacKaye told her that
“‘you don’t throw up from high blood pressure,’” roll her eyes, and make faces at
plaintiff. Eventually, plaintiff was diagnosed with Hashimoto’s disease, which she
alleged is an autoimmune disease which impacts the thyroid.
       In summary, plaintiff has adequately pleaded each of the elements for a prima
facie case of employment discrimination. Judgment on the pleadings was error and must
be reversed on the discrimination cause of action.



                                             12
       Defendants complain that all three grounds of discrimination are combined in one
confusing cause of action. This claim is in effect a special demurrer for uncertainty.
Demurrers for uncertainty are disfavored “because ambiguities can reasonably be
clarified under modern rules of discovery.” (Lickiss v. Financial Industry Regulatory
Authority (2012) 208 Cal.App.4th 1125, 1135.)


                                              III
       Plaintiff also alleged hostile work environment due to harassment based on race,
ethnicity or national origin, gender, or physical disability based on the same allegations
we have discussed. Section 12940, subdivision (j) prohibits an employer from harassing
an employee because of race, national origin, ancestry, gender or physical disability, or
medical condition.
       Hostile work environment harassment in violation of section 12940, subdivision
(j) has most commonly arisen in the context of sexual harassment. A sexual harassment
hostile environment claim requires a plaintiff to allege he or “she was subjected to sexual
advances, conduct, or comments that were (1) unwelcome [citation]; (2) because of sex
[citation]; and (3) sufficiently severe or pervasive to alter the conditions of employment
and create an abusive working environment [citations].” (Lyle v. Warner Brothers
Television Productions (2006) 38 Cal.4th 264, 280 (Lyle).) The requirement that
harassment be severe or pervasive to allege an actionable hostile environment has been
applied to racial harassment as well. (Thompson v. City of Monrovia (2010) 186
Cal.App.4th 860, 878; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 263–
264 [hostile environment “must be assessed from the ‘perspective of a reasonable person
belonging to the racial or ethnic group of the plaintiff’”].)
       “The working environment must be evaluated in light of the totality of the
circumstances: ‘[W]hether an environment is “hostile” or “abusive” can be determined
only by looking at all the circumstances. 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

                                              13
work performance.’ [Citation.]” (Miller, supra, 36 Cal.4th at p. 462.) “Harassment that
is ‘occasional, isolated, sporadic, or trivial’ generally fails to meet this standard.
[Citation.] There is both a subjective and objective component to this standard.
[Citation.] ‘[A] plaintiff who subjectively perceives the workplace as hostile or abusive
will not prevail under the FEHA, if a reasonable person in the plaintiff’s position,
considering all the circumstances, would not share the same perception.’ [Citation.]”
(McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 293 quoting Lyle, supra,
38 Cal.4th at pp. 283–284.)
       We consider each basis for harassment separately. Plaintiff’s allegations of
gender-based harassment are meager. At oral argument, her counsel clarified that she is
not claiming harassment based on gender. The first amended complaint alleges that on
multiple occasions, MacKaye made comments to plaintiff and to another Hispanic
employee, Letty Shiff, and to other Hispanic employees “about their Hispanic heritage in
a demeaning way.” The only specific examples given are the instances we have
recounted, referring to flies on food in Mexico, MacKaye’s claim that her Spanish
vocabulary included the words for clean, pick-up, and trash; and a suggestion that
plaintiff would enjoy a restaurant because it served tacos. Plaintiff’s allegations of racial
or gender harassment are not sufficient to allege severe or pervasive harassment
actionable under FEHA. We have reviewed the allegations of harassment in the revised
proposed second amended complaint, which do not cure the pleading deficiency.
       Plaintiff’s allegations of harassment based on physical disability or physical
condition are more extensive. She alleged that she suffered from several medical
conditions including hypothyroidism and a heart murmur, and that MacKaye repeatedly
accused her of being a hypochondriac when plaintiff sought to take sick leave. She
alleged that other non-Hispanic employees were allowed to use sick leave more liberally.
Plaintiff alleged that she reported to work when she was ill, rather than face abuse by
MacKaye. As a result of MacKaye’s harassment with regard to her medical conditions,
plaintiff alleged she suffered 13 panic or anxiety attacks. Taking these allegations to be
true under the standard for review of judgment on the pleadings, we conclude that

                                               14
plaintiff has adequately alleged that MacKaye’s harassment of her based on her medical
conditions or disability created a hostile environment which is actionable under FEHA.
The trial court erred in granting judgment on the pleadings on the claim for harassment
based on disability or medical condition.


                                              IV
       Defendants argue that plaintiff cannot state a cause of action for failure to prevent
harassment or discrimination because the trial court properly granted judgment on her
causes of action for harassment and discrimination. This is their only argument on this
cause of action.
       Since plaintiff has adequately alleged causes of action for discrimination and
harassment, it follows that she has adequately alleged a cause of action for failure to
prevent discrimination or harassment in violation of section 12940, subdivision (k). That
statute makes it an unlawful employment practice for an employer “to fail to take all
reasonable steps necessary to prevent discrimination and harassment from occurring.”
We reverse the judgment as to this cause of action. (Lewis v. City of Benicia (2014) 224
Cal.App.4th 1519, 1532 [reversing judgment on the pleadings on cause of action for
failure to prevent sexual harassment in light of ruling reversing summary adjudication of
sexual harassment claim].)


                                               V
       Plaintiff alleged wrongful termination in violation of public policy based on
discrimination and harassment of her in violation of FEHA.
       “‘[W]hen an employer’s discharge of an employee violates fundamental principles
of public policy, the discharged employee may maintain a tort action and recover
damages traditionally available in such actions.’ (Tameny v. Atlantic Richfield Co.
(1980) 27 Cal.3d 167, 170.) ‘To support a common law wrongful discharge claim, the
public policy “must be: (1) delineated in either constitutional or statutory provisions;
(2) ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving

                                              15
merely the interests of the individual; (3) well established at the time of the discharge;
and (4) substantial and fundamental.”’ [Citation.]” (Mendoza v. Western Medical Center
Santa Ana (2014) 222 Cal.App.4th 1334, 1338.) The policies underlying FEHA satisfy
the requirement of a public policy. (Ibid.)
       “To establish a claim for wrongful discharge in violation of public policy, a
plaintiff must plead and prove (1) a termination or other adverse employment action;
(2) the termination or other action was a violation of a fundamental public policy, as
expressed in a constitutional, statutory, or regulatory provision; and (3) a nexus between
the adverse action and the employee's protected status or activity. [Citation.]” (Rope,
supra, 220 Cal.App.4th at p. 660.)
       In light of our conclusions as to the discrimination and harassment claims, we
reverse judgment on this cause of action as well. (Rope, supra, 220 Cal.App.4th at p. 660
[reversing order sustaining demurrer to wrongful discharge cause of action in light of
reversal of order sustaining demurrer to discrimination claim].)


                                              VI
       Plaintiff’s fourth cause of action is for breach of an implied covenant of good faith
and fair dealing. She alleged an oral agreement with Goodland, which “included the
additional terms and conditions of employment as promulgated in written memoranda,
policies, customs and practices at GOODLAND.” She also alleged an oral agreement
with Hungry Heart to perform duties as an accounts payable clerk, but does not allege
additional terms as promulgated in company policies or customs.
       Plaintiff alleged these oral agreements “contained an implied-in-law covenant of
good faith and fair dealing that the parties would act with fairness and good faith towards
each other and that the parties would do nothing to hinder or impair the rights of each
other to receive and enjoy the benefits of the agreement.” She alleged that defendants
breached this covenant by terminating her “for false reasons stated and for terminating
him based on his disability.”



                                              16
       As to the allegation in the first amended complaint that she was wrongfully fired,
we question whether this allegation in fact refers to plaintiff, since it refers to a male
plaintiff, and the plaintiff in this case was not terminated. Assuming this was a mere
drafting oversight, insofar as the allegation refers to plaintiff it does not state a cause of
action. In Guz, supra, 24 Cal.4th at pages 349–350, the Supreme Court explained that the
covenant “cannot impose substantive duties or limits on the contracting parties beyond
those incorporated in the specific terms of their agreement.” In light of the presumption
of Labor Code section 2922 that all employees serve at will, an employer “may act
peremptorily, arbitrarily, or inconsistently, without providing specific protections such as
prior warning, fair procedures, objective evaluation, or preferential reassignment.” (Id. at
p. 350.) For that reason, an employee cannot claim a breach of the covenant of good faith
and fair dealing based on what is in effect, a wrongful termination. (Ibid., and at
pp. 352–353.)
       In her revised proposed second amended complaint, plaintiff alleged that
defendants breached the covenant by discriminatory and harassing conduct in the unequal
application of sick time rules; in constructively terminating plaintiff based on her
disability; and by failing to give her a raise because of her ethnicity. In Guz, supra, 24
Cal.4th at page 353, footnote 18, the Supreme Court observed: “We do not suggest the
covenant of good faith and fair dealing has no function whatever in the interpretation and
enforcement of employment contracts. As indicated above, the covenant prevents a party
from acting in bad faith to frustrate the contract’s actual benefits. Thus, for example, the
covenant might be violated if termination of an at-will employee was a mere pretext to
cheat the worker out of another contract benefit to which the employee was clearly
entitled, such as compensation already earned.” (Italics omitted.)
       We take our cue from the Supreme Court and conclude that the trial court erred by
denying plaintiff leave to file a second amended complaint revising the allegations of
breach of the covenant of good faith and fair dealing. (Rodriguez v. County of Los
Angeles (2013) 217 Cal.App.4th 806, 810 [“[w]here . . . motion for judgment on the



                                               17
pleadings is granted, denial of leave to amend constitutes an abuse of discretion if the
pleading does not show on its face that it is incapable of amendment”].)


                                               VII
       Plaintiff’s fifth cause of action is for intentional infliction of emotional distress.
She alleged that the conduct of MacKaye was so extreme and outrageous that it caused
her to suffer mental and 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.]” [Citation.]’ (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1609.)”
(Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780.) “In order for
conduct to be considered outrageous for the purpose of tort liability, it ‘must be so
extreme as to exceed all bounds of that usually tolerated in a civilized society.’
[Citations.]” (Ibid.)
       “Emotional distress damages . . . may be available when an employee is subject to
unlawful harassment under the FEHA. [Citation.]” (Harris, supra, 56 Cal.4th at p. 234.)
“A claim for [intentional infliction of emotional] distress arising out of employment is
‘not barred where the distress is engendered by an employer’s illegal discrimination
practices.’ [Citations.] Neither discrimination nor harassment is a normal incident of
employment. [Citations.]” (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at
p. 288.)
       Since plaintiff has adequately alleged causes of action for discrimination and
harassment based on MacKaye’s behavior, we conclude the defendants are not entitled to
judgment on this cause of action. We reject defendant’s argument that this claim is
subject to the exclusive jurisdiction of the Workers Compensation Act. “[E]motional
distress caused by [an employer’s] allegedly unlawful decision to demote [a plaintiff

                                               18
employee] is recoverable in a civil action and exempt from the [Workers Compensation
Act] exclusive remedy provisions.” (Huffman v. Interstate Brands Corp. (2004) 121
Cal.App.4th 679, 692.) “Employer actions that violate a fundamental public policy,
however, are exempt from the exclusive remedy provisions of the WCA because they
‘cannot under any reasonable viewpoint be considered a “normal part of the employment
relationship.”’ [Citations.]” (Id. at p. 695.)


                                             VIII
       Plaintiff’s sixth cause of action is for negligent infliction of emotional distress.
       California does not recognize an independent tort for negligent infliction of
emotional distress. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) The proper
tort is negligence, and the elements are duty, breach of duty, causation, and damages.
(Ibid.) Duty of care is a question of law, dependent on the foreseeability of risk and a
weighing of policy considerations for and against imposition of liability. (Ibid.)
       In her reply brief, plaintiff characterizes the issue as though she had alleged a
cause of action for negligence, contending that she adequately alleged a breach of duty.
The revised proposed second amended complaint also alleged a cause of action for
negligent infliction of emotional distress rather than a negligence cause of action. She
alleged: “Plaintiff is further informed and believes that Defendant[] MACKAYE failed
to exercise reasonable care and knew or should have known that the conduct set forth
hereinabove would cause severe emotional distress to Plaintiff.” This does not
adequately allege a cause of action for negligence.


                                                 IX
       MacKaye argues that she is not personally liable for discrimination against
plaintiff and for failure to prevent discrimination against plaintiff (first and seventh
causes of action). Counsel for plaintiff conceded the point at oral argument. We agree.
FEHA does not impose personal liability on an individual employee or manager for
discrimination. (Reno v. Baird (1998) 18 Cal.4th 640, 645–646.) But an employee who

                                                 19
harasses another employee may be personally liable for harassment. (Lewis v. City of
Benicia, supra, 224 Cal.App.4th at p. 1524.)
       MacKaye is entitled to judgment on the first and seventh causes of action only.
                                     DISPOSITION
       We reverse the judgment on the pleadings on the causes of action for
discrimination, failure to prevent discrimination, harassment based on physical disability
or medical condition, wrongful termination in violation of public policy, and intentional
infliction of emotional distress. Plaintiff is to have an opportunity to amend her pleading
with respect to the covenant of good faith and fair dealing, as she sought to do in her
revised proposed second amended complaint. Defendant MacKaye is entitled to
judgment on the pleadings on the causes of action for discrimination and failure to
prevent discrimination. Judgment on the pleadings is affirmed on the causes of action for
harassment based on gender or national origin and negligent infliction of emotional
distress. Each party is to bear its own costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  EPSTEIN, P. J.
We concur:



       MANELLA, J.



       EDMON, J.*




        *Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.


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