Filed 1/21/14 Renswick v. Tapan e s CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

GERI RENSWICK , Plaintiff and Appellant,

v.

RICARDO TAPANES et al ., Defendants and Respondents. B248055
(Los Angeles County Super. Ct. No. B C 487698 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara
A. Meiers , Judge. Reversed with directions

. Haney Law Group, Haney & Young, Steven H. Haney , Sarah J. Peterson and Ryan C.C. Duckett for Plaintiff and Appellant.
Marcos F. Hernandez and Alexander Molina for Defendant s and Respondent s

.

_____ __ _______________2 INTRODUCTION

Geri Renswick , a

n elementary schoo l teacher, filed this action against her employer, the Los Angeles Unified School District, her school, Humphrey s Avenue Elementary School, and her principal, Ricardo Tapanes (collectively, the District)

. The
District filed a demurrer to three of the five causes of action in Ren sw ick ’ s second amended complaint , and the trial court sustained the demurrer without leave to amend. The trial court then dismissed the entire action, even tho ugh two causes of action
remain ed , and entered a judgment of dismissal a gainst Re n sw

ick. We reverse the judgment because the trial court ’ s order sustaining the demurrer to three of the five
causes of action did not resolve the entire action.

FACTUAL AND PROCEDURAL BACKGROUND 1

Renswick ’s operative second amended complaint a lleged that she was employed by the Distric t as an elementary school teacher for over 22 years and was over the age of
40 . She suffered “

from a physical disability and/or condition (incontinence), ” which

“ impacted a major life activity

- specifically her ab ility to pass urine or feces under her
own control. ” Despite a surgery in approximately 2008, Renswick “ still suffered from incontinence, and her colon continued to function improperly resulting in sporadic, and/or the uncontrolled passage of bowel and/or urinary movements, ” so that “ Renswick was subject to frequent and irregular bathroom breaks during the school year

. . . . ” As a result, Renswick needed reasonable ac commodations on school days during bad weather because on such days teachers had “ to mai ntain recess within their own individual
classrooms ” and could not leave the students unsupervised.

1 “On appeal from the sustaining of a demurrer, we accept as true the well

- pleaded facts in t he operative complaint, [Renswick’s] second amended complaint.” ( Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1189, fn. 1.)3

At some point during Renswick ’ s tenure at Humphrey s Avenue Elementary School, Tapanes became the principal. Renswick asked Tapanes for an accommodation
th at, on “ inclement weather days , ” would “ allow another staff member to supervise her classroom for a short period of time to allow [her] additional time to use the restroom ” during indoor recess periods. “ Tapanes denied this request, and forced Renswick to hold
in her own urine and/or bowels, or run the risk of having her classroom unsupervised and be subject to unwarranted discipline if she left her classroom to use the restroom. ” The District did not engage in an interactive process “ to determine the rea sonableness of this accommodation request. ”
Because of Renswick ’ s age and disability, Tapanes arranged to have “ his assistant follow [Renswick] around school to subject her to heightened scrutiny when no other
teachers without such characteristics were fo rced to endure ” such scrutiny. Tapanes also made derogatory remarks about Renswick ’ s health and age, and spoke to her “ about the
differences betw

een retirement and termination

. . . as a means to threaten her and force her to retire, ” even though Renswick had not requested such information

. Tapanes embarrassed Renswick b y “ publicly criticizing ” her about her teaching style, “ subjected her to several subsequent disciplinary conferences ” “ as a form of public embarrassment and ridicule, ” and denied her break s during her teaching day. Tapanes also made

“ knowingly false comments about her performance, experience, and skills. ” When Renswick complained, Tapanes “ retaliated against [ her ] for speaking her voice and expressing her opinion about being targeted beca use of her age. ” Tapanes also retaliated against Renswick for her union representation at a disciplinary hearing of another female teacher who was also alleging discrimination under the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq

. ). Tapanes tried “ to coerce and discourage [Renswick] from representing other teachers at disciplinary hearings concerning their own allegations of FEHA violations , ” and use d discipline to discourage
Renswick “

from filing a grievance or having a union represe ntative present at her several disciplinary hearing[s]. ” In 2012, a fter Renswick filed two complaints with the Department of Fair Employment and Housing (DF E H) , Tapanes “ engaged in further4

retaliatory conduct by denying [Renswick] family leave to be with her sister who was suffering from cancer. Even though there were three substitute teachers on standby, Tapanes denied Renswick ’ s request to have a substitute teacher cover for her so she could
be with her ill sister. ”
Renswick ’ s second amended complaint asserted causes of action for (1) disability and age discrimination in violation of FEHA ( Gov

. Code , § 12940, subd

. (a) ) , (2) failure to provide reasonable accommodation for a physical disability in violation of FEHA ( id

. , § 12940, subd

. (m) ) , (3) failure to engage in the interactive process in violation of FEHA ( id

. , § 12940, subd

. ( n) ) , (4) retaliation in violation of FEHA ( id

. , § 12940, subd

. (h) ) , and (5) intentional infliction of emotional distress.
The District demurred to the first, fourth, and fift h causes of action of Renswick ’ s second amended complaint. The District argued that the first cause of action was uncertain because it included both disability discrimination and age discrimination, which could prevent the District from filing a motion fo r summary adjudication on the first
cause of action. The District also argued that Renswick did not allege that it had engaged in any wrongdoing because of her protected status or that she had suffered an adverse employment action. The District argued th at the fourth cause of action was “ devoid of
facts ” because Renswick did not allege retaliation on the basis of her protected status, and
that “ FEHA only prohibits retaliation for engaging in acts protected by FEHA, ” and union representation is not one of those acts. Finally, the District argued that the fifth cause of action for intentional infliction of emotional distress did not allege extreme or outrageous behavior and was preempted by Workers ’ Compensation . The District did not demur to, or make any argument regarding, Renswick ’ s second cause of action for failure to provide reasonable accommodation or the third cause of action for failure to engage in the interactive process. At the hearing on the District ’ s demurrer, the trial court stated, “ [ t ] her e ’ s not a single fact pled here that shows anything, not real facts, not evidentiary facts. And you
don ’ t have to plead everything with evidentiary facts, but certain types of allegations you must plead with more particularity

. ” The trial court stated, “ This is a fact

- pleading state.5

We n eed some facts

. . . . There ’ s just nothing here except conclusory statements that she
has a stomach condition and she ’ s been discriminated against in various ways. That ’ s it. ”
The trial court ruled: “

Defendant ’ s Demu rrer is sustained without leave to amend, the complaint consisting of nothing but conclusory general statements with no factual basis
whatsoever shown for the conclusions stated

. As to defendant Humphrey s Avenue Elementary School, the entire action is str icken and dismissed with prejudice. In light of the Demurrer ruling, the entire complaint is dismissed with prejudice. ” 2 Renswick fi led a timely notice of appeal.

DISCUSSION

A

. Standard of Review When reviewing a judgment dismissing an action after a n order sustaining a demurrer without leave to amend, we review the complaint de novo “ to determine
whether the complaint alleges facts sufficient to state a cause of action on any legal theory. ” (

Akopyan v. Wells Fargo Home Mortgage, Inc. (2013) 21 5 Cal. App.4th 120,
130

- 131 .) “

We independently review the superior court ’ s ruling on a demurrer and
determine de novo whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. ” ( Regents of University of Californ ia v. Superior Court (2013) 220 Cal.App.4th 549, 558; Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.) When a demurrer is sustained without leave to amend, “ we decide whether there is a reasonable possibility that the defect can be cured by am endment: if it can be,
the trial court has abused its discretion and we reverse . [Citation.] ” ( City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865 ; accord, Arce v. Childrens Hospital Los

2 The District had filed a motion to strike five portions of the second amended complaint that identified Humph reys Avenue Elementary School as a defendant on the ground that under E ducation Code section 3 5162 an individual school is not a proper defendant. Renswick did not oppose the motion.6

Angeles (2012) 211 Cal.App.4th 1455, 1471.) “ The issue o f leave to amend is always open on appeal , even if not raised by the plaintiff. [Citation.] ” ( City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746.)

B

. The Trial Court Erred by Dismissing the Action Because the District Did
Not Demur to the Second Cause of Action for Failure T o Provide Reasonable Accommodation or the Third Cause of Action for Failure T o Engage in the Interactive Process
The trial court dismissed the ent ire action even though after the court had
sustained the District ’ s d emurrer to three causes of action, two causes of action remained.
This was error, undoubtedly inadvertent. (See Mounger v. Gates (1987) 193 Cal.App.3d 1248, 1254 [trial court cannot issue a judgment of dismissal where the court has not disposed of all ca

uses of action]; cf

. Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 307 [ “

judgment that disposes of fewer than all the causes of action framed by the complaint is not final in the fundamental sense as to any parties between whom another
cause of action remains pending ” ].)
The District contends that the trial court “ heard its own motion to dismiss under
Sections 436 and 438 of the Code of Civil Procedure. ” 3 The record does not support the
District ’ s contention. Th ere is nothing in the record ind icat ing that the trial court
dismissed Renswick’s second amended complaint pursuant to either Code of Civil

3 Code of Civil Procedure section 436 provides: “ The court may, upon a motion made pursuant to Section 435 , or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. ” Code of Civil Procedure section 438, subdivision (b)(2), provides that a court “may upon its own motion grant a motion for judgment on the pleadings,” and that if , after the court grants such a motion with leave to amend, and an amended complaint or answer is filed after the time for doing so has expired, then the court may strike the amended complaint or

answer. ( Id ., subds. (b)(2), (h)(4)(A) & (B).)7

Procedure section 436 or section 438 . The trial court ’ s order does not state that it was striking or dismissing either the second and third causes of action, or the entire second
amended complaint, pursuant to either of these statutes. To the contrary, the trial court ’ s minute order states that the court dismissed the complaint “ [i]n light of the Demurrer ruling. ”
N or does the record show that the trial court gave any notice that it was considering striking or dismissing the second amended complaint on its own motion pursuant to Code of Civil Procedure section 436 or section 438

. In fact, the record is to the contrary . O n N ovember 9, 2012 the tria l court continued the hearing on the District’s
demurrer to Re n swick’s first amended complaint to February 19, 2013 and gave notice
that it also would be conducting a hearing pursuant to Code of Civil Procedure
sections 436 and 438 with respect to Re n swick ’s first amended complaint on that date

. The trial court stated , however, that “[a]n Amended Complaint can be filed within 30 days. And if not answered, any demurrer, et cetera , can be heard on 2

- 19

- 13 at 9:30 a.m., but no [Code of Civil Procedure sectio n] 438, 436 hearing will be on for that date.” The
trial court also stated at the November 9, 2012 hearing that Renswick would only have to file opposition to a motion under section 436 or 438 if she decided not to file an amended complaint , which she did file on December 10, 2012

. Citing Tostevin v. Douglas (1958) 160 Cal.App. 2d 321, the District argues that dismissal is appropriate where a plaintiff changes his or her story in multiple complaints
to conform with different theories of recovery. The tria l court in Tostevin , however, did not strike a complaint on its own motion . Rather, it struck the complaint pursuant to a motion to strike filed by the defendant after the plaintiff had failed to comply with the

court ’ s directions in a prior o rder sustain ing a demurrer with leave to amend. ( Id. at
p. 324.) Moreover, the plaintiff in Tostevin kept m aking changes to his complaints in “ an obvious attempt .

. . to circumvent the operation of the statute of frauds and the statute of
limitations. ” ( Id. at p. 331.) There is no suggestion that Renswick did any such thing in
this case

. Similarly, in Neal v. Bank of America (1949) 93 Cal.App.2d 678, also cited by the District, the trial court struck an amended complaint that consisted “ solely of a mere8

reiterati on ” of the original complaint and that made no attempt “ to state new facts, or to state the facts more fully, ” not on the court ’ s own motion pursuant to Code of Civil
Procedure section 128 but by granting the defendant ’ s motion to strike and to dismiss the action. ( Id. at pp. 68 1 , 682; see Los Angeles County Dept. of Children & Family Services v. Superior Court (2008) 162 Cal.App.4th 1408, 1420, fn. 11 [ Neal “ involve[d] a judicial response to a duly noticed motion ” ].)
The District also asserts the trial c ourt “ has the power to strik e .

. . frivolous and sham plea dings ” pursuant to Code of Civil Procedure section 128. Section 128 gives the
court the authority to do many things, such as preserving order, compelling compliance with judgments, orders, and pro cess, and compelling attendance of persons to testify, but it does not say anything about striking frivolous or sham pleadings. The District has not cited to any authority authorizing dismissal of a complaint pursuant to section 128 because the complaint is frivolous or a sham

. 4 Nor does the District dispute that in this

case there was no notice of any motion to dismiss , or order to show cause regarding dismissal of, the complaint pursuant to Code of Civil Procedure section 128

.

4 In Schimm el v. Levin (2011) 195 Cal.App.4th 81, a case not cited by the District, the Court of Appeal, citing Code of Civil Procedure section 128, subdivision (a)(5), held that the trial court did not abuse its discretion in striking the defendant’s petition to

com pel arbitration filed by a disqualified lawyer who had confidential information about the plaintiff, but the court gave the defendant 60 days to re

- file the petition. ( Id. at pp. 8 3, 87

- 88.) In Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502, the court assumed, but did not reach the issue of whether, “superior courts have the discretion under Code of Civil Procedure section 128 to dismiss a CEQA petition in the appropriate circumstances where the petitioner” fails to prepare and complete the admin istrative record of proceedings “in a timely fashion.” ( Id. at p. 1524; but see Cunningham v. Superior Court (1986) 177 Cal.App.3d 336, 356 [Code of Civil Procedure section 128 “empowers the trial court to dismiss when appropriate”].)9

C

. The Trial Court Erred by Sustaining the Demurrer to the First Cause of Action for Age and Disability Discrimination To state a claim for disability or age discrimination under FEHA, the plaintiff must allege “

that (1) he was a member of a protected class, (2) he was qualifi ed for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. ” ( Guz v. Bechtel
Nat ional, Inc. (2000) 24 Cal.4th 317 , 3 5 5; see McCaskey v. California State Auto mobile
Assn. (2010) 189 Cal.App.4th 947, 9 7 9 .) Renswick argues that she pleaded all of these elements. The District contends that she failed to plead suffi cient facts on element (3) adverse employment action and element (4) some other circumstance sug gesting discriminatory motive. “[A]n adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable

. . . .” ( Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.) “ [T] he determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor or relatively trivial
adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actio nable, but adverse treatment that is reasonably likely to impair a reasonable employee ’ s job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] sections 12940 [, subdivision ] (a) and 12940 [, subdivision ] (h). ” ( Id. at p p. 1054

- 1055, fn. omitted. ) “ [T] he phrase ‘ terms, conditions, or privileges ’ of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against10

employment discrimination that the FEHA was intended to provide. ” ( Id. at p. 1054, fn.
omitted. ) At the hearing on the District ’ s demurrer, the trial court told counsel for Renswick,

“ You have no thing pled, sir. I ’ m sorry. I don ’ t see it. ” We , however, see it. Renswick alleged that the District subjected her to “ heightened scrutiny ” and classroom inspection s that the District did n ot impose on other teachers, subjected
Renswick to unwarranted discipline that other teachers did not receive , refused to allow her to go to the restroom when she needed to, did not give her sufficient notice of disciplinary conferences to allow her to have union representation, and , in retaliation , denied her request for family leave. These allegations satisfy the element of adverse employment action. (See Jones v. Department of Corrections & Rehabilitation (2007)
152 C al.App.4 th 1367, 1381 [ “ a series of alleged discriminatory acts must be considered collectively ra

ther than individually in determining whether the overall employment action is adverse [citations] and, in the end, the determination of whether there was an adverse employment action is made on a case

- by

- case basis, in light of the objective
evidence ” ]

. ) In the “

particular factual context of employment ” as an elementary school teacher ( Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 374 ) , d enying Rensw ick the opportunity to use the restroom with sufficient frequenc y to accommodate her disability, requiring her to remain in the
classroom with bladder and bowel discomfort while s upervis ing children , and increasing the risk of urination and defecation in the classroom, materially affect ed the terms, conditions , and pri vileges of her employment. (See Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1233 [ Yanowitz gives a “ broad interpretation of the materiality test ” ], disapproved on another ground in Jones v. Lodge at Torrey Pines Partn ership (2008) 42 Cal.4th 1158, 1173

- 1174 ; Turner v. Hershey Chocolate USA ( 3d Cir. 2006) 440 F.3d 604, 611, fn. 4 [adverse employment action
under the A

mericans with Disabilities Act includes the failure to make reasonable accommodations to a qualified emp loyee with a physical disability] ; Honey v. County of11

Rockland (S.D.N.Y

. 2002) 200 F.Supp.2d 311, 320 [refusal to accommodate a plaintiff ’ s disability is an adverse employment action under the A mericans with Disabilities Act ].) The District also argues th at Renswick was “ unable to establish .

. . any circumstance suggesting a discriminatory motive, ” and made “no showing

. . . that ‘ some other circumstance suggests discriminatory motive ’

. . . , as her claim must be based upon
evidence

. . . . ” FEHA, howev er, does not require the plaintiff to “ establish ” or “

show ”

a nything at the pleading stage. Renswick alleged that the District was aware of her disability and the problem her incontinence caused on inclement weather days, but denied her request for an acc ommodation of temporarily allowing another staff member to cover her classroom for a brief period of time so she could use the restroom. She alleged that

“ Tapanes made derogatory remarks [ about ] her health , ” subjected her to sudden discipline that other n on

- disabled teachers did not have to experience, yelled at her,
threatened teachers who “ ever talked

. . . about the discrimination, ” and denied her request for family leave after she filed DFEH complaints. These allegations suggest “ a proscribe d motive ” and satisfy the fourth element of a disability discrimination claim. (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 714.) The District does not make any argument specifically directed to Renswic k ’ s age discrimination claim. “

In order to make out a prima facie case of age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff. ” ( Sandell v. Taylor

- Listug,
Inc. (2010) 188 Cal.App.4th 297, 321.) Element (4) includes both adverse employment action and circumstances suggesting a discriminatory motive, and, as discussed above,
Renswick ’ s allegations satisfied these requirements. In addition, Renswick alleged that

“ upon T apanes ’ arrival approximately five to six other tenured teachers over the age of forty (40) were targeted by Tapanes due to their age, and were either forced into early retirement, transferred out of [ Humphrey s Avenue Elementary School], or left the school12

due to Tapanes ’ animosity against them due to their age. ” Renswick also alleged that

“ Tapanes terminate d multiple teachers ’ assistants who had over 25 years of experience and were also over the age of forty. ” Renswick further alleged that Tap anes made
d erogatory remarks about her age, and spoke with her “ about the differences between
retirement and termination ” in order to “ threaten her and force her to retire. ” Finally, the District argues that Renswick ’ s “ cause of action for disability and age
discrim ination is devoid of facts ” and not pleaded with sufficient particularity. To satisfy the particularity requirement of a statutory claim against a public entity, the plaintiff must plead “ ‘ every fact material to the existence of its statutory liability

. . . . ’ ” ( Lopez v.
Southern Cal

. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795 ; see Richardson

- Tunnell v. School Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1061.)
Renswick ’ s second amended complaint satisfies th e particularity requirem ent. It identifies the statutory basi s for her discrimination claims, Government Code
section 12940 , subdivision (a), and alleges what adverse employment action she suffered and why it was the result of discriminatory actions by Tapanes. It identifies th e individual who allegedly discriminated against her, describes the statements he made to and about her, and provides some (although not all) of the dates or time periods when he made the statements and took actions against her. The District does not iden tify any material fact that Renswick did not allege or whose absence makes her claims difficult to understand, other than to state that her discrimination claims are “ devoid of facts. ” The allegations in Ren sw

ick ’ s discrimination cause of action are parti cular enough.

D

. The Trial Court Erred by Sustaining the Demurrer to the Fourth Cause of Action for Retaliation
To state a claim f or retaliation under FEHA , the plaintiff must allege “ ( 1) he or she engaged in a ‘ protected activity, ’ (2) the employer s ubjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer ’ s action. ” ( Yanowitz v. L ’ Oreal USA, Inc. , supra , 36 Cal.4th at p. 1042; see McCoy v. Pacific Maritime Assn. (2013) 216 Ca l.App.4th 283, 298 .) “ Under the FEHA,13

protected activity includes opposition to ‘ any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part, ’ [citation] or ‘ participated in any manner in an investigation, proceeding, or hearing ’ in an administrative proceeding. ” ( Taylor v. City of Los Angeles Dept. of Water
& Powe r , supra , 144 Cal.App.4th at p. 1229.) Retaliation under Government Code section 12940, subdivision (h), “ encom passes a broad range of protected activity, ” and
the “ determination as to what constitutes a protected activity is inherently fact driven. ” ( Rope v. Auto

- Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 652 , petn. for review pending, petn. fil ed Nov. 22, 2013, S214798 .) Renswick alleged that the District retaliated against her for, among other things, filing complaints with the DFEH in January and November 2012 , assisting others who alleg ed FEHA violations , and requesting the reasonable accomm odation of having
someone reli e ve her for a short period of time so that she could use the restroom

. These allegations state a claim for retaliation under FEHA. (See Sanche z v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1341 [plaintiff stated retaliati on claim under Government
Code secti o n 12940, subdivision (h), “ which prohibits an employer from retaliating against an employee for exercising her rights under [Government Code] section 12940

. . . because she sought reasonable accommodations for her disa bility ” ] ; Taylor v. City of Los Angeles Dept. of Water & Power , supra , 144 Cal.App.4th at p. 1229 [plaintiff

“ sufficiently pleaded that he engaged in a protected activity ” by alleging that he assisted in another employee ’ s discrimination charge and filing a complaint for retaliation] .) The District argues that Renswick “ does not appear to understand that FEHA only prohibits retaliation for engaging in acts protected by FEHA, ” and that “ [b]eing a Union Representative and being represented by a Union, even i f true, are not acts protected by
FEHA. ” Th e District’s argument misunderstands Renswick ’ s claim . Renswick ’ s retaliation claim is not base d only on her union activities. It is based on filing and assisting others in filing FEHA discrimination claims, ac ts that are pro tected by FEHA.
Moreover , there is no reason union activities can not form the basis of FEHA retaliation14

claims if such activities include or are a part of opposing discrimination prohibited by
FEHA or are as a result of f iling, testifying, or assisting a FEHA proceeding.

E

. The Trial Court Properly Sustained the Demurrer to the Fifth Cause of Action for Intentional Infliction of Emotional Distress Without Leave
To Amend “To state a cause of action for intentional infliction of emotion al distress, the plaintiff must allege (1) extreme and outrageous conduct 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) ac tual and proximate causation of the emotional distress by the defendant’s outrageous conduct. [Citation.] Further, the conduct alleged ‘ must be “ ‘ so extreme and outrageous “ as to go beyond all possible [bounds] of decency, and to be regarded as atrocious , and utterly intolerable in a civilized community.”’” ’” ( Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 160 7

- 160 8 .) The D istrict argues that even if Renswick’s allegations satisfy these requirements,
her cause of action for intentional i nfliction of emotional distress is preempted by the
workers ’ compensation law. Renswick has not addressed this issue in her briefs.

“ An employer’s intentional misconduct in connection with actions that are a normal part of the employment relationship, su ch as demotions and criticism of work practices, resulting in emotional injury is considered to be encompassed within the compensation bargain, even if the misconduct could be characterized as ‘manifestly unfair, outrageous, harassment, or intended to caus e emotional disturbance.’ [Citation.] Workers’ compensation ordinarily provides the exclusive remedy for such an injury. [Citations.] Conduct in which an employer steps out of its ‘“proper role”’ as an employer or conduct of ‘“questionable relationship to the employment,”’ however, .

. . is not encompassed within the compensation bargain and is not subject to the exclusivity rule. [Citation.]” ( Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338 , 367.) Renswick argues that she “pleaded the necessary elements for a cause of action for intentional infliction of emotional distress” by alleging that “ Tapanes yelled at [ her ]15

stating comments about her teaching performance that he knew were untrue,” and made the statements “specifically to mak e [Renswick] cry and suffer distress.” Renswick contends that making such “false accusations to [Renswick] is beyond the bounds of decency and had nothing to do with his role as principal in helping [her] improve her teaching skills.”
Even assuming that Tapanes’ alleged conduct , including his refusal to have someone briefly supervise Renswick’s class on rainy days so that she could use the

restroom , was sufficiently extreme and outrageous to state a claim for intentional infliction of emotional distress, her claim still fall s within the n ormal employment relationship, and therefore is barred by the excl usivity provision of the worker s ’ compensation law. Because Renswick makes no effort to explain how she c an amend her
cause of action to avoid the exclusiv ity bar, we cannot say that the trial court abused its
decision by denying Renswick leave to amend her cause of action for intentional
infliction of emotional distress

.16 D ISPOSITION

The judgment is reversed. The trial court is directed to vacate its ord er sustaining the District’s demurrer and to enter a new order sustaining without leave to amend the District’s demurrer to the fifth cause of action for intentional infliction of emotional
distress and otherwise overruling the demurrer , and ordering the D istrict to answer the second amended complaint

. Renswick is to recover her costs on appeal.

SEGAL, J. *

We concur:

PERLUSS, P. J.

ZELON, J.

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