In a suit for pregnancy discrimination, interference, and retaliation, was an employer entitled to change venue from Los Angeles County, where the employee had been working remotely before being fired, to Orange County, where the employer's office was located?
The California Fair Employment and Housing Act (FEHA) has a special venue provision that lets plaintiffs file a lawsuit “in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked … but for the alleged unlawful practice.” The Court of Appeal recently decided a case about where an executive assistant could bring an employment discrimination lawsuit when she was working remotely.
Background: Executive Assistant Working Remotely in Pandemic When Discrimination Occurred
Eleanor Malloy was hired as an assistant to the CEO of a printing company in 2018. According to Malloy, during her first 18 months at the company, the CEO routinely made offensive comments to and about her, including denigrating her because of her gender, expressing an inappropriate interest in her personal life and suggesting they could become a couple.
She claimed that she and other employees began working remotely on March 17, 2020 due to the COVID-19 pandemic. In mid-September 2020, Malloy called the CEO to tell him she was pregnant. She said he congratulated her and said she’d be able to work from home both during and after her pregnancy in light of health concerns posed by the COVID-19 pandemic.
In March 2021, while 37 weeks pregnant, Malloy was diagnosed with sudden-onset gestational hypertension and preeclampsia, was advised to seek emergency medical treatment. Her doctor ordered her to stop working. She emailed her boss and a company payroll representative, attaching the note from her physician authorizing her leave from work until May 9, 2021. The CEO responded, “Thanks.” Malloy also telephoned him and left a voicemail message explaining she wanted to discuss her right to a leave. The call wasn’t returned.
Malloy gave birth to her son on March 14, 2021. Shortly thereafter, she asked about adding him to the company's insurance plan. She also told the CEO that she was off work and planned to return on May 10th. The CEO left a voicemail message responding to the insurance question and said he wanted to speak to Malloy “about what your availability will be, once you come back to work” because “we've got some structural changes going on.”
On April 12, 2021 the CEO phoned Malloy and asked if she’d heard his voicemail about working in person two-to-three times a week. Malloy replied, if required to return to work in May, she couldn’t work in person for childcare reasons for at least a month. The CEO demanded she immediately return to work in person, asserting he “really needed someone in the office.” The next day in a call, he fired her because she’d refused to return to work at the office in person. Malloy alleged the CEO “further explained [that] employing her was ‘not going to work’ for him because she was making it ‘inconvenient’ for him to run his business.”
Malloy filed a complaint against her employer. She alleged the following:
- Pregnancy and gender discrimination and sex and gender-based harassment, in violation of the FEHA;
- Interference with her leave rights and retaliation for attempting to exercise those rights under the Pregnancy Disability Leave Law and California’s Moore-Brown-Roberti Family Rights Act;
- Failure to prevent harassment, discrimination, and retaliation in violation of the FEHA; and
- Wrongful termination in violation of public policy.
The Motion for Change of Venue
The CEO and the company moved for a change of venue to Orange County, contending that LA County was an improper venue under the FEHA. As support, the CEO argued:
- The unlawful practices alleged by Malloy happened in Orange County;
- All the records relating to her lawsuit were maintained in Orange County; and
- Her employment was based in Orange County, where she would’ve continued to work “but for her separation of employment.”
The superior court ruled that proper venue was in Orange County. Malloy asked the Court of Appeal to reverse the superior court’s ruling because it improperly disregarded the special FEHA venue statute—which authorized the filing of her lawsuit in LA County based on the allegations in her complaint, the fact that the FEHA violations had been committed in LA County, and she would’ve continued working remotely in LA County but for the FEHA violations.
The Court of Appeal’s Rationale
Presiding Justice Dennis M. Perluss of the California Court of Appeal wrote that it’s an unlawful employment practice under the FEHA, unless based on a bona fide occupational qualification, for an employer, because of the sex of a person, to discharge that person from employment or to discriminate against the person in terms, conditions, or privileges of employment. This includes pregnancy or medical conditions related to pregnancy and childbirth.
FEHA, through California’s Pregnancy Disability Leave Law (PDLL), also says it’s an unlawful employment practice “[f]or an employer to refuse to allow an employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed four months and thereafter return to work.” In addition, it’s unlawful for an employer “to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.” Justice Perluss said that an employee may exercise her right to pregnancy disability leave after childbirth for the period the employee is unable to work because of her pregnancy or a pregnancy-related medical condition.
Plus, the California Family Rights Act (CFRA), also part of FEHA, provides that it’s an unlawful employment practice for an employer to refuse to grant a qualified employee up to 12 weeks per year of job-protected family care and medical leave, which includes leave to bond with a newborn. As with other provisions of FEHA, it’s unlawful for an employer to discharge an employee for her or his exercise of the right to family care and medical leave.
Venue Was Proper in Los Angeles County?
Malloy alleged in her complaint she was working with her employer's consent from her home in Los Angeles County beginning in mid-March 2020 due to the COVID-19 pandemic. In September 2020 the CEO told her she could continue to work from home during and after her pregnancy, and on March 3, 2021 her doctor told her to stop working due to pregnancy-related health conditions. The doctor authorized leave from work due to those conditions through May 9, 2021. This was information the CEO acknowledged without objection. Further, Malloy told the CEO in early April 2021 that she planned to return to work on May 10, 2021 (when her newborn would be eight weeks old), but would need to continue to work from home for at least another month.
Neither the CEO nor the company presented any evidence in the trial disputing those allegations, although the CEO argued that Malloy always worked from Orange County and would have been immediately required to return to the company's Orange County office if she hadn’t been fired.
Here, because of a pregnancy-related medical condition, Malloy's doctor on March 3, 2021 ordered her not to work from that date through May 9, 2021, approximately six weeks after her scheduled due date. Malloy was on leave at her home in LA County, where she’d been working on March 3, 2021, when in early April she was ordered to immediately return to work in person in Orange County. She was fired when she said she couldn’t.
Justice Perluss explained that “interfere” means “to enter into or take a part in the concerns of others” or “to interpose in a way that hinders or impedes: come into collision or be in opposition.” Under the plain meaning of the statutory language, the defendants interfered with her leave rights in Los Angeles County, where they were being exercised— not in Orange County.
As a result, Malloy's cause of action for interference with her PDLL rights—and, therefore, all her causes of action arising from the same set of operative facts—was properly filed in Los Angeles County. In addition, she would’ve continued to work in Los Angeles County but for the unlawful employment practices.
Based on those allegations, the Court of Appeal held that venue was proper in LA County as “the county in which the aggrieved person would have worked … but for the alleged unlawful practice.”
Mallory’s request was granted, and the employer’s motion to change of venue to OC was vacated. Malloy v. Superior Court, (California Court of Appeal, 2nd Appellate District, 9/19/2022).
Bottom Line
Under California Government Code § 12965(c)(3), an action in which one claim is for a FEHA violation may be brought where the claimed violation occurred or where the plaintiff would have worked but for the alleged violation even if the employer is located elsewhere.
Danielle G. Eanet can be reached at Eanet, PC in Los Angeles, CA at danielle@eanetpc.com.