Judge: Craig Griffin, Case: Braun v. City Of Anaheim, Date: 2022-10-10 Tentative Ruling
Defendants’ demurrer to the following causes of action: Second Cause of Action for Harassment Based On Race; Fourth Cause of Action based on Failure To Prevent Harassment; Sixth Cause of Action based on Hostile Work Environment and Seventh Cause of Action based on Constructive Termination In Violation Of Public Policy.
Defendants City of Anaheim and Linda Andal’s Demurrer to the First Amended Complaint is SUSTAINED with 30 days leave to amend as to the second and fourth causes of action
Plaintiff expressly states there is no opposition to the Demurrer to the sixth and seventh causes of action and does not request leave to amend. Accordingly, on that basis, the Demurrer to Sixth Cause of Action based on Hostile Work Environment and Seventh Cause of Action based on Constructive Termination In Violation Of Public Policy is SUSTAINED without leave to amend.
Meet and Confer
The court finds that the parties met and conferred regarding the demurrer in compliance with CCP§430.41
Legal Authority Re Demurrer
The role of a demurrer is “to test the legal sufficiency of a complaint.” (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994, citations omitted.) “We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal. 4th 26, 38, [citations omitted].) However, the court does not “assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, [citations omitted].)
“Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
Second Cause of Action: Discrimination Based On Race (Govt Code § 12940(j)
The FEHA specifically prohibits harassment based on “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status.” [Gov.C. § 12940(j)(1); see Aguilar v. Avis Rent A Car System, Inc. (1999) 21 C4th 121, 130, 87 CR2d 132, 138-139—verbal harassment in workplace (epithets, derogatory comments or slurs) violates both FEHA and Title VII]
“To establish a prima facie case of a racially hostile work environment, [plaintiff] was required [and failed] to show that (1) he was a member of a protected class; (2) he was subjected to unwelcome racial harassment; (3) the harassment was based on race; (4) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile, or offensive work environment; and (5) the [employer] is liable for the harassment.” (Thompson v. City of Monrovia (2010) 186 CA4th 860, 876; see also Nazir v. United Airlines, Inc. (2009) 178 CA4th 243, 264—whether workplace harassment is sufficiently “severe” or “pervasive” assessed from the “perspective of a reasonable person belonging to the racial or ethnic group of the plaintiff”)
The victim of racial harassment must show a “concerted pattern of harassment of a repeated, routine or a generalized nature” which constituted an “unreasonably abusive or offensive work-related environment or adversely affected the reasonable employee's ability to do his or her job.” (Rutter Emp. Lit §10:269, citing Davis v. Monsanto Chem. Co., 858 F2d at 349 and Jones v. UPS Ground Freight (11th Cir. 2012) 683 F3d 1283, 1299-1304 (Title VII) [triable issue re hostile work environment where African-American plaintiff was subjected to racial slurs, found banana peels in his truck on several occasions and was threatened by white coworkers after he complained about them wearing Confederate-themed clothing].)
To prove racial or ethnic harassment, plaintiffs must establish that they were subjected to offensive comments or other abusive conduct that were clearly based on plaintiffs' race or ethnicity and were sufficiently “severe” or “pervasive” to alter the conditions of their employment. [Aguilar v. Avis Rent A Car System, Inc. (1999) 21 C4th 121, 130, 87 CR2d 132, 138 (FEHA); Lawler v. Montblanc North America, LLC (9th Cir. 2013) 704 F3d 1235, 1244 (Title VII); Reynaga v. Roseburg Forest Products (9th Cir. 2017) 847 F3d 678, 686-687 (Title VII); see Hernandez v. Valley View Hosp. Ass'n (10th Cir. 2012) 684 F3d 950, 958 (Title VII)—jury question whether conduct severe or pervasive where plaintiff's supervisors made at least a dozen racist comments to plaintiff over 14-month period]
In Janken v. GM Hughes Elecs., (1996)46 Cal. App. 4th 55, the court considered the distinction between claims for discrimination and harassment and held, “We conclude, therefore, that the Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment. These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.” (Janken v. GM Hughes Elecs., (1996)46 Cal. App. 4th 55, 64–65; cited with approval in Reno v. Baird (1998) 18 Cal.4th 640, 646-647.)
“’[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.’ (Roby, supra, 47 Cal.4th at p. 706.) Put differently, ‘[h]arassment claims are based on a type of conduct that is avoidable and unnecessary to job performance.’” (Doe v. Dep't of Corr. & Rehab. (2019) 43 Cal. App. 5th 721, 736.) In Doe, plaintiff alleged harassment based on his disability which came in the form of criticizing his work, giving him to much work, not allowing him to leave early, suspecting him of bringing a cell phone into work and ordering a wellness check on him. (Doe at p. 737) The court held that while plaintiff “’may have understandably found the incidents frustrating or upsetting, they were not so severe as to ‘alter the conditions of [his] employment’ or create an ‘abusive working environment.’” (citation) This is objectively so. Workplaces can be stressful and relationships between supervisors and their subordinates can often be contentious. But FEHA was not designed to make workplaces more collegial; its purpose is to eliminate more insidious behavior like discrimination and harassment based on protected characteristics. … That plaintiff felt his supervisor performed his duties in a negative or malicious way does not transform his conduct into disability harassment.” (Id. [citations omitted.])
Here, plaintiff asserts various management decisions were unfair and constituted harassment, including decisions to not provide adequate support, to not promote, to delay providing a merit review, to give a 1% raise, to criticize her performance, etc., were because she was black. There is no allegation of verbal, physical or visual harassment that conveyed an offensive message to plaintiff. There is no allegation that Ms. Andal made an express or implied racial slur or a racially based or related comment. While plaintiff contends that the employment decisions were made because of her race, the court does not “assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
Plaintiff’s Opposition relies on Roby v. McKesson Corp. (2009) 47 Cal.4th 686 for the proposition that “managerial acts and personnel decisions can support a harassment claim when they communicate a hostile message or reflect discriminatory animus.” (Opp at 3:11-13.) Roby is distinguished from the instant action. In Roby, the plaintiff suffered panic attacks which caused excessive sweating and plaintiff also had a nervous disorder which caused her to dig her fingernails into the skin of her arms, resulting in open sores. Plaintiff’s supervisor was aware of this disability and made demeaning comments, gestures and facial expressions to plaintiff about her body odor and arm sores. In addition to the offensive comments, the supervisor unfairly selected the job assignments and reprimanded her in connection with her performance. (Roby at p. 709) The court considered both the offensive comments and the employment actions and held, “Viewed together, the evidence is sufficient to support the jury’s conclusion that Schoener harassed Roby in violation of the FEHA.” (Roby at p. 711.)
Roby is different from the instant action because here the plaintiff has not alleged any statements, facial expressions, etc. demonstrating a racial animus. There is no alleged nexus between plaintiff’s supervisor’s conduct and plaintiff’s race. (See Doe v. Dep't of Corr. & Rehab (2019) 43 Cal. App. 5th 721, 738 – distinguishing Roby and holding that “each of [plaintiff’s supervisor’s] challenged acts fell within his job duties and—unlike Roby's supervisor's behavior, which centered on Roby's physical appearance—there is no evidence of a nexus between [plaintiff’s supervisor’s] conduct and Doe's asthma or dyslexia.)
Plaintiff has failed to identify any offensive comment or other abusive conduct based on her race, let alone that it was sufficiently “severe” or “pervasive” to alter the conditions of her employment. There are no facts alleged showing a nexus between Ms. Andal’s conduct and plaintiff’s race. Instead, the allegations contained in the FAC reflect employment actions by the supervisor and do not support a harassment cause of action.
Fourth Cause of Action: Failure to Prevent Harassment Based On Race (Govt. Code §12940(k)
An employer has a duty to prevent and remedy instances of racial harassment: an employer who fails to remedy problems of which it has actual or constructive knowledge may be held liable for harassment despite the existence of a formal policy against harassment. (Rutter Emp. Lit §10269, citing inter alia Gov.C. § 12940(k) (applicable to all forms of harassment).)
Plaintiff does not dispute Defendants’ argument in the Demurrer that there can be no claim for failure to prevent unlawful harassment unless a claim for harassment is first established. As the demurrer to the second cause of action for Harassment has been sustained, the fourth cause of action for Failure to Prevent Harassment is also sustained. (Dickson v. Burke Williams, Inc. (2016) 234 Cal.App.4th 1307, 1315-1317; Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880)
The Demurrer is SUSTAINED with 30 days leave to amend as to the Second Cause of Action for Harassment Based on Race and the Fourth Cause of Action for Failure to Prevent Harassment.
Moving Party to give notice.