Judge Jill Feeney, Case Number: 22STCV20318, Date: 2023-08-10 Tentative Ruling

Defendants the Los Angeles Unified School District (“LAUSD”) and The Board of Trustees of the California State University (“CSU”) employed Plaintiff as a substitute teacher for almost seven years. (FAC ¶14.) Plaintiff is a 52-year old African-American female with dark skin and ethnic hairstyles. (FAC ¶14.) In 2016, Plaintiff applied for an Early Childhood Special Education (“ECSE”) Program at CSU Dominguez Hills (“CSUDH”) to obtain her preliminary credential. (FAC ¶15.) CSU and LAUSD were in a partnership wherein CSU selected and trained teacher candidates who applied to LAUSD upon completion of said training. (FAC ¶16.) Plaintiff was admitted to the ECSE program and began performing non-paid student teaching fieldwork for CSUDH under the supervision of Amber Lennon at Short Elementary in LAUSD on August 26, 2019. (FAC ¶17.) Plaintiff could not work as a substitute teacher while performing work as a student teacher between August 26, 2019 and December 7, 2019. (FAC ¶17.)

Lennon subjected Plaintiff to discrimination, harassment, and unfair negative criticism by making racial comments directly to Plaintiff, to the students, and to the teacher aide. (FAC ¶19.) For example, Lennon proclaimed she hated another African-American teacher because of her father’s history of flirting with black women. (FAC ¶19.) Lennon further made inappropriate comments about Plaintiff’s skin color, hair texture, intellect, accent, and about black people generally. (FAC ¶20.) Lennon would not allow Plaintiff to speak to parents, forced her to sit in chairs made for children, excluded her from a mural wall titled “We Are Family” consisting of pictures of students and other aides who were not African-American, did not allow an African-American parent to enter the classroom in front of Plaintiff, and referenced her weight and race in a farewell gift. (FAC ¶¶21-24.)

Despite Plaintiff receiving passing scores and positive evaluations, Lennon refused to provide a letter of reference which Plaintiff required to be eligible to apply as a full-time teacher with LAUSD. (FAC ¶27.) Because Plaintiff lacked Lennon’s letter of reference, her application to be considered for full-time employment with LAUSD was denied. (FAC ¶30.) If Plaintiff is not employed as a teacher within five years, Plaintiff will be forced to redo all of her special education classes. (FAC ¶31.) Additionally, without Lennon’s letter of reference, Plaintiff cannot secure any teaching position in any school district. (FAC ¶31.)

CSU demurs to Plaintiff’s FAC on the grounds that (1) the FAC does not allege that Plaintiff was an employee of CSU, (2) Plaintiff’s second cause of action fails because the FAC does not state facts that would support a cause of action for gender discrimination, and (3) Plaintiff’s third cause of action fails because the FAC does not state facts that would support a cause of action for age discrimination.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

For purposes of imposition of liability for unlawful employment practices, “[t]he FEHA provides definitions of the terms ‘employee’ and ‘employer.’ (Gov. Code § 12926, subds. (c) & (d).)” (Shephard v. Loyola Marymount Univ. (2002) 102 Cal.App.4th 837, 842.) The FEHA defines an employer as follows: “Employer” includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political civil subdivision of the state, and cities, except as follows: [¶] “Employer” does not include a religious association or corporation not organized or private profit.’ (Gov. Code § 12926, subd. (d).) Beyond these limited definitions, the FEHA does not define an employer, employee, or what constitutes employment. (Shephard v. Loyola Marymount Univ., supra, at p. 842.) To recover under the discrimination in employment provisions of the FEHA, the aggrieved plaintiff must be an employee. (Ibid.)

To determine whether an employer-employee relationship exists which may subject an employer to liability for employment discrimination under the FEHA, a court must consider the totality of circumstances that reflect upon the nature of the work relationship of the partis, with emphasis upon the extent to which a defendant controls a plaintiff’s performance of employment duties. (Vernon v. State of California (2004) 116 Cal.App.4th 114, 125.)

Factors to be taken into account in assessing the relationship of the parties include payment of salary or other employment benefits and Social Security taxes, the ownership of the equipment necessary to performance of the job, the location where the work is performed, the obligation of the defendant to train the employee, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments, the defendant's discretion to determine the amount of compensation earned by the employee, the skill required of the work performed and the extent to which it is done under the direction of a supervisor, whether the work is part of the defendant's regular business operations, the skill required in the particular occupation, the duration of the relationship of the parties, and the duration of the plaintiff's employment. (Vernon v. State of California, supra, 116 Cal.App.4th at 125.) “Generally, ... the individual factors cannot be applied mechanically as separate tests; they are intertwined, and their weight depends often on particular combinations.’ [Citation.]” (S.G. Borello & Sons, Inc. v. Department of Industrial Relations¿(1989) 48 Cal. 3d 341, 351, fn. omitted.)

“Of these factors, the extent of the defendant's right to control the means and manner of the workers' performance is the most important.” (Vernon v. State of California, supra, 116 Cal.App.4th 114 at 126.) In all cases, an “employer must be an individual or entity who extends a certain degree of control over the plaintiff.” (Ibid.) The focus of our evaluation of the right to control the plaintiff's work performance is upon “not only the result but also the means by which the result was accomplished.” (Ibid.) And particularly, the inquiry considers the level of control an organization asserts over an individual's access to employment opportunities. (Ibid.) Further, “the control an organization asserts must be ‘significant,’ [citation], and there must be a ‘sufficient indicia of an interrelationship ... to justify the belief on the part of an aggrieved employee that the [alleged co-employer] is jointly responsible for the acts of the immediate employer.’ [Citations.]” (Ibid.) In determining liability under the FEHA, we look “to the degree an entity or person significantly affects access to employment’ ....” (Ibid.)

Compensation of some sort remains indispensable to the formation of an employment relationship. (Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 637.) Uncompensated volunteers, such as firefighters and community service officers are not employees who may recover under the FEHA. (Id at p. 631.) Although substantial benefits such as health insurance, vacation, or sick pay are indicia of employment status, these benefits may not be incidental to the activity performed. (Id at p. 636.) The absence of any direct or indirect remuneration from the defendant to the plaintiff, while not controlling, is at least strong evidence that an employment relationship did not exist. (Vernon v. State of California, supra, 116 Cal.App.4th 114 at 126.) Despite 2015 amendments to the FEHA that prohibit discrimination against persons involved in unpaid positions, such as unpaid internships, these amendments did not eliminate remuneration as a threshold factor to determine whether an individual is an employee under the FEHA. (Talley v. County of Fresno (2020) 51 Cal.App.5th 1060, 1083.)

Here, the FAC alleges that LAUSD and CSU were joint employers of Plaintiff because they were in a partnership where CSU selected and trained teacher candidates who applied for employment with LAUSD upon completion of said training. (FAC ¶¶16-17.) Plaintiff was not paid for her student teaching field work. (FAC ¶17.) Her field work took place at an LAUSD school, Short Elementary and was supervised by an LAUSD employee, Lennon. (FAC ¶17.) Lennon reprimanded and evaluated Plaintiff. (FAC ¶¶20, 24, 26.) Plaintiff’s field work lasted around five months between August and December 2019. (FAC ¶17.) A CSU employee, Dr. Kate Esposito, threatened to terminate Plaintiff if she did not stop contacting LAUSD employees. (FAC ¶38.)

The factors weigh against a finding that an employee-employer relationship is sufficiently pled. First, there is no allegation that Plaintiff received any remuneration for her services performing student teacher field work. The FAC states the work was unpaid and fails to allege any facts showing Plaintiff received any other indirect remuneration that was not incidental to activity of teaching. The lack of remuneration is a strong indicator that an employment relationship did not exist.

Next, the facts alleged show the work was located on an LAUSD campus and supervised by an LAUSD employee, Lennon, who had the power to reprimand and evaluate Plaintiff. Because there are no facts alleged that CSU was involved in providing the equipment, location, or supervision for Plaintiff’s work as a student teacher, these factors weigh against a finding that an employee-employer relationship existed between Plaintiff and CSU.

Control over the means by which Plaintiff performed her work also rested with LAUSD, not CSU according to the allegations of the FAC. The FAC alleges, among other things, that Lennon, Plaintiff’s supervisor and LAUSD employee, dictated where Plaintiff could sit, how she spoke when she was working with students, whether she could speak to parents, and whether she could instruct the teacher aides. Lennon controlled the means by which Plaintiff performed her work because these facts show Plaintiff followed Lennon’s instructions to determine how she acted in the classroom and interacted with students, parents, and other members of staff.

The FAC alleges that CSU did train Plaintiff before she applied to work for LAUSD. Additionally, CSU’s Director of Special Education had the power to terminate Plaintiff if she did not stop contacting LAUSD employees. These factors weigh in favor of a finding of an employee-employer relationship between Plaintiff and CSU.

In opposition, Plaintiff cites Mejia v. Roussos Construction, Inc. (2022) 76 Cal.App.5th 811, 820, arguing that CSU and LAUSD are joint employers who share the same legal obligations because CSU and LAUSD were in a partnership and Plaintiff was required to engage in unpaid student teaching fieldwork. However, the court in Mejia defined a joint employer as an entity that shares the legal obligations of another by exercising significant control over the other entity’s employees. (Mejia at 820.) For example, the owner of a gas station was a joint employer alongside the operator of one of its gas stations because a worker in such a relationship is an admitted employee of a primary employer and is subject to the protection of applicable labor laws and wage orders. (Id.) Additionally, joint employers involve a primary employer that is “‘presumably paying taxes’ and affording legal protections to employees.” (Id at p. 821.)

Here, the FAC does not allege facts that CSU controlled Plaintiff, let alone LAUSD’s employees. There are no facts alleging Plaintiff is an admitted employee of LAUSD or CSU, that either entity is a primary employer, or that either entity provided Plaintiff with the protections due to employees.

Plaintiff also argues that the Gov. Code, § 12940(c) (which is not pled in the FAC) should apply to Plaintiff’s situation because it prohibits discrimination against any person involved in an apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person due to that person’s membership in a protected category. However, the corresponding California Code of Regulations Code which was amended at the same time as section 12940(c) to include unpaid workers states that unpaid interns and volunteers “may or may not” be employees for purposes of liability under the FEHA. (Cal. Code Regs., tit 2, §1108(k).) The amendments to account for traditionally unpaid roles such as volunteers and interns do not eliminate the factors set forth in Vernon. (Talley v. County of Fresno (2020) 51 Cal.App.5th 1060, 1083.)

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that (1) he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

Government Code section 12940 provides that it is unlawful for an employer to refuse to hire or employ a person or to discharge a person from employment on the basis of age. (See Govt. Code, § 12940(a).) A prima facie case of age discrimination arises when the employee shows “(1) at the time of the adverse action he or she was 40 years of age or older, (2) an adverse employment action was taken against the employee, (3) at the time of the adverse action the employee was satisfactorily performing his or her job and (4) the employee was replaced in his position by a significantly younger person.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1003.)

An adverse employment action is generally an action that materially affects the terms, conditions, or privileges of employment. (See Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1161.) “The protections against discrimination in the workplace . . . are ‘not limited to adverse employment actions that impose an economic detriment or inflict a tangible psychological injury upon an employee.’” (Id. at 1162 (quoting Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052).) “FEHA ‘protects an employee against unlawful discrimination with respect . . . to . . . the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.’” (Id. (quoting Yanowitz, supra, 36 Cal.4th at 1053-54).)

“[A]lthough an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Yanowitz, supra, 36 Cal.4th at 1052.)

Here, the FAC alleges facts that support a finding that Plaintiff is a member of a protected class because it alleges discrimination based on her gender and gender is a protected class under the FEHA. The FAC also alleges facts to support a finding that Plaintiff was performing competently as a student teacher because she received positive evaluations and passing scores during her work with LAUSD. However, there are no facts that Plaintiff suffered an adverse employment action with respect to CSU because, as discussed above, the facts alleged do not support a finding that an employee-employer relationship existed between Plaintiff and CSU. Because the facts are insufficient to find that CSU employed Plaintiff, the demurrer is SUSTAINED as to this cause of action against CSU. For the same reasons, the demurrer is SUSTAINED as to the cause of action for age discrimination against CSU.