Judge: Salvatore Sirna, Case: 21PSCV00953, Date: 2023-03-23 Tentative Ruling

Case Number: 21PSCV00953    Hearing Date: March 23, 2023    Dept: G

Plaintiff Patricia Kears’s Application for a Preliminary Injunction

Respondent: Defendants Tri-City Mental Health Authority and Warkitha Torregano

TENTATIVE RULING

Plaintiff Patricia Kears’s Application for a Preliminary Injunction is DENIED. Furthermore, the temporary restraining order entered February 28, 2023 is VACATED.

BACKGROUND

This is an employment discrimination action. Beginning in March 2015, Plaintiff Patricia Kears worked as a senior human resource analyst for Defendant Tri-City Mental Health Authority (Tri-City). In January 2018, Tri-City hired Defendant Warkitha Torregano (Torregano) as a human resources manager, with supervisory responsibilities over Plaintiff. On March 15, 2018, Plaintiff alleges Torregano inadvertently sent a text message meant for a third-party to Plaintiff that stated “Plaintiff was very incompetent and had no idea how to do her job.” Plaintiff then reported the text message to Nancy Gill, who was chief operating officer for Tri-City and oversaw the human resources department. 

Subsequently from 2018 to 2019, Plaintiff alleges Torregano subjected Plaintiff to frequent disparate treatment by speaking condescendingly to Plaintiff in meetings and emails; scrutinizing Plaintiff’s work more closely; failing to respond to Plaintiff in a timely manner; challenging Plaintiff’s information; challenging Plaintiff’s requested accommodations while not questioning accommodations for Plaintiff’s younger coworkers; giving a written reprimand for Plaintiff’s failure to follow policies and correct payroll errors; removing Plaintiff from leadership meetings; and revoking Plaintiff’s “lead pay” which comprised 5% of Plaintiff’s salary.

On October 22, 2019, Plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC) and California Department of Fair Employment and Housing (DFEH) for age and disability discrimination against Tri-City. On June 25, 2020, Plaintiff and Tri-City entered into a settlement agreement where Tri-City agreed to require management receive training on age discrimination and retaliation. However, Plaintiff alleges the trainings never occurred and harassment continued. In October 2020, Plaintiff was hospitalized with severe abdominal pain and prescribed medical treatment for emotional stress. In January 2021, Trevor Bogle, an employee of Tri-City and friend of Torregano, began telling Plaintiff’s coworkers that Plaintiff filed a lawsuit against Tri-City and could not be trusted. On March 2, 2021, Plaintiff filed a second complaint with the EEOC and DFEH for retaliation. Plaintiff alleges that Plaintiff’s annual performance review indicated areas of improvement, was provided in a different format than those of Plaintiff’s peers, and was given to Plaintiff late as a result of Plaintiff’s complaints to the EEOC and DFEH.

On November 22, 2021, Plaintiff filed a verified complaint against Tri-City and Torregano (collectively, Defendants), as well as Does 1-50, alleging the following causes of action: (1) retaliation in violation of FEHA, (2) violation of Labor Code section 1102.5, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, and (5) defamation.

On January 14, 2022, Plaintiff filed a First Amended Complaint (FAC) against the same parties, alleging the following causes of action: (1) retaliation in violation of FEHA, (2) violation of Labor Code section 1102.5, (3) harassment, (4) failure to prevent harassment and retaliation, (5) intentional infliction of emotional distress, (6) negligent infliction of emotional distress, (7) defamation, (8) declaratory relief, and (9) injunctive relief. On February 18, Defendants demurred to Plaintiff’s FAC and filed a motion to strike. On April 4, the court overruled the demurrer as to Plaintiff’s second, sixth, and seventh cause of action; sustained the demurrer as to Plaintiff’s first cause of action without leave to amend; and sustained the demurrer with leave to amend as to Plaintiff’s third, fourth, fifth, eight, and ninth causes of action.

On May 20, 2022, Plaintiff filed a Second Amended Complaint (SAC) against the same parties, alleging the same causes of action. On June 27, Defendants demurred to Plaintiff’s SAC. At a July 22 hearing on the demurrer, the court noted parties attempted to meet and confer, ordered supplemental briefing, and continued the hearing. On December 5, the court overruled Defendants’ demurrer to the third, fourth, eighth, and ninth causes of action while sustaining the demurrer to the fifth cause of action with leave to amend.

On December 9, 2022, Plaintiff filed a Third Amended Complaint (TAC) against the same parties, alleging the same causes of action.

On February 27, 2023, Plaintiff filed an ex parte application for a temporary restraining order (TRO) and preliminary injunction with regards to employment actions taken by Defendants. On February 28, the court granted Plaintiff’s TRO in part and set an OSC Re: Preliminary Injunction for March 23. A mandatory settlement conference is also set for July 27 with a post-mediation status conference/case management conference set for August 7.

EVIDENTIARY OBJECTIONS

Defendants have submitted a list of evidentiary objections to Plaintiff’s declaration in support of Plaintiff’s supplemental brief for a preliminary injunction. The court OVERRULES objections 1, 2, 4, 6, 7, 8, 9, 10, 11, 12, 14, 15, and 16, and SUSTAINS objections 3, 5, and 13.

ANALYSIS

Plaintiff seeks a preliminary injunction to prevent Defendants from allegedly retaliating against Plaintiff until the disposition of this action. For the following reasons, the court DENIES Plaintiff’s request.

Legal Standard

Preliminary Injunctions

“[A] court will deny a preliminary injunction unless there is a reasonable probability that the plaintiff will be successful on the merits, but the granting of a preliminary injunction does not amount to an adjudication of the merits.” (Beehan v. Lido Isle Community Assn. (1977) 70 Cal.App.3d 858, 866.) “The function of a preliminary injunction is the preservation of the status quo until a final determination of the merits.” (Ibid.)

In evaluating a party’s request for a preliminary injunction, courts consider “(1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction.” (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) “[T]he greater the . . . showing on one, the less must be shown on the other to support an injunction.” (Ibid, quoting Butt v. State of California (1992) 4 Cal.4th 668, 678.) The balancing of harm between the parties also “involves consideration of such things as the inadequacy of other remedies, the degree of irreparable harm, and the necessity of preserving the status quo.” (Husain v. McDonald’s Corp. (2012) 205 Cal.App.4th 860, 867, quoting Abrams v. St. John’s Hospital & health Center (1994) 25 Cal.App.4th 628, 636.)¿The burden of proof is on the plaintiff as the moving party “to show all elements necessary to support issuance of a preliminary injunction.” (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)

Temporary Injunctive Relief for Retaliation

Furthermore, when bringing a retaliation action pursuant to Labor Code section 1102.5, Plaintiff may seek temporary or preliminary injunctive relief as set forth in Labor Code section 1102.62. (Labor Code, § 1102.61.) In considering such a request for injunctive relief, “[i]n addition to any harm resulting directly from the violation of Section 1102.5, the court shall consider the chilling effect on other employees asserting their rights under that section in determining whether temporary injunctive relief is just and proper.” (Labor Code, § 1102.62, subd. (b).) “Appropriate injunctive relief shall be issued on a showing that reasonable cause exists to believe a violation has occurred.” (Labor Code, § 1102.62, subd. (c).) However, “[a]ny temporary injunctive relief shall not prohibit an employer from disciplining or terminating an employee for conduct that is unrelated to the claim of the retaliation.” (Labor Code, § 1102.62, subd. (d).)

Labor Code section 1102.62 does not define “reasonable cause” and the court has not been able to locate any controlling decisions that provide a definition with respect to this provision. However, Labor Code section 1102.5 prohibits retaliation against an employee for disclosing information “if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.” (Labor Code, § 1102.5, subd. (b), emphasis added.) In order to establish a prima facie case for retaliation, a plaintiff must “establish, by a preponderance of the evidence, that retaliation for an employee’s protected activities was a contributing factor in a contested employment action.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718 (Lawson).

Thus, the court finds Labor Code section 1102.62, subdivision (c) operates to allow temporary injunctive relief for retaliation plaintiffs subject to ongoing harm when they establish a prima facie case of retaliation and does not require the reasonable probability of prevailing on the merits as required for preliminary injunctions. This also comports with statute’s public policy of not only preventing ongoing harm to retaliation plaintiffs but also preventing the chilling effect of the retaliation on other employees. (Labor Code, § 1102.62, subd. (b).)

Discussion

In this case, Plaintiff alleges Plaintiff engaged in protected activity by reporting payroll violations to Tri-City’s governing board and that Defendants subsequently retaliated against Plaintiff by placing Plaintiff on administrative leave. In response, Defendants argue their actions did not constitute adverse employment action and that Plaintiff’s report was not a contributing factor to Plaintiff being placed on administrative leave.

Retaliation Allegations

On November 4, 2022, Plaintiff sent a letter to Tri-City’s governing board, informing them that Defendants were violating state payroll law by deducting sign-on bonuses from employee’s final paychecks upon separation. (Kears Decl., ¶ 8, Ex. 1; Abrena Decl., ¶ 2.) Defendants do not contest that Plaintiff’s letter constituted protected conduct or that Plaintiff had reasonable cause to believe a violation of state payroll law occurred. Thus, the court now considers whether Defendants’ subsequent employment actions constituted retaliation.

On December 14, 2022, Plaintiff claims retaliation began as described below:

“On December 14, 2022, . . . Defendants began further retaliating against me by removing me from the HR Department, the MHSA Director, banning me from working with my coworkers, placing me under the supervision of that has little HR experience, excluding me from HR meetings, and systematically removing my duties and tasks.” (Kears Decl., ¶ 14.)

Rimmi Hundal (Hundal), Tri-City’s executive director, admits to holding a virtual meeting with Plaintiff and Dana Barford (Barford), Tri-City’s Director of MHSA and Ethnic Services, on December 14, 2022. (Hundal Decl., ¶ 7.) In that meeting, Hundal believed it was appropriate for Plaintiff to no longer be under the supervision of Torregano due to the present litigation. (Hundal Decl., ¶ 7.) Hundal decided to assign Plaintiff under the supervision of Barford, who also held a management position within Tri-City. (Hundal Decl., ¶ 7; Barford Decl., ¶ 6.) At the time Hundal made this decision, Hundal claims Hundal had not been made aware of Plaintiff’s report to the governing board. (Hundal Decl., ¶ 7.)

On December 15, 2022, Plaintiff sent Hundal an email that Torregano was continuing to retaliate against Plaintiff. (Kears Decl., Ex. 4; Hundal Decl., Ex. 1.) According to Plaintiff’s email, although Plaintiff’s coworker “Nikki” was to remain under Torregano’s supervision, Hundal and Barford both agreed that Plaintiff could still work with Plaintiff’s coworker as a team. (Kears Decl., Ex. 4; Hundal Decl., Ex. 1.) However, Plaintiff’s email then alleges that Torregano had prohibited Plaintiff’s coworker from working with Plaintiff by requiring the coworker to stop copying Plaintiff on emails, to remove Plaintiff from the coworker’s out-of-office notifications, to no longer rely on Plaintiff as coworker’s backup, and to longer provide any backup to Plaintiff. (Kears Decl., Ex. 4; Hundal Decl., Ex. 1.)

Both Hundal and Barford deny every instructing Plaintiff that Plaintiff could not work with fellow senior human resources analysis Nikki Cockrell (Cockrell). (Barford Decl., ¶ 6; Hundal Decl., ¶ 8-9.) In a December 22, 2022 response to Plaintiff’s December 15 email, Hundal stated (1) there was no need for Plaintiff to be copied on emails from Cockrell as Plaintiff and Cockrell were assigned different coverage responsibilities and (2) Plaintiff would receive backup from Barford. (Hundal Decl., ¶ 9, Ex. 2.) Hundal also disputed Plaintiff’s claim that Cockrell was barred from communicating with Plaintiff and noted Cockrell could still provide additional backup if required. (Hundal Decl., ¶ 9, Ex. 2.)

On December 28, 2022, Plaintiff sent another email to Hundal and Barford maintaining Plaintiff’s previous allegations against Torregano. (Hundal Decl., ¶ 10, Ex. 3; Barford Decl., ¶ 9.) Plaintiff also continued to take issue with Hundal’s system of assignments, expressing a preference for the previous system in which Plaintiff and Cockrell each served as leads for specific departments but covered each other to evenly distribute their workload. (Hundal Decl., Ex. 3.) Last, Plaintiff noted Cockrell’s new backup, Hope Dobson (Dobson), was a temporary human resources assistant with less experience that Plaintiff and Plaintiff alleges this replacement constituted proof of retaliation. (Hundal Decl., Ex. 3.) Hundal responded on January 3, 2023, by assuring Plaintiff that Dobson was not brought on as a replacement for Plaintiff and that the previous policy Plaintiff referenced had been changed by Torregano on May 6, 2021. (Hundal Decl., ¶ 11, Ex. 4; Barford Decl., ¶ 9.)

Plaintiff’s description of this period is less detailed, with Plaintiff alleging as follows:

“For the next two weeks, various of my duties and tasks were systematically taken from me and purportedly either completed by Defendant Torregano or given to others in the HR Department to complete who were much less experienced than me and under Torregano’s direct supervision. I was excluded from the regular HR meetings conducted by Torregano and isolated from my coworkers. I began to be interrogated regularly by my now current supervisor, [Barford], about routine HR processes, procedures and decisions that I had been completing in the same manner for eight (8) years.” (Kears Decl., ¶ 18.)

In describing the supervision of Plaintiff, Barford claimed it was “stressful and frustrating” because Plaintiff would accuse Barford of attempting to isolate or separate Plaintiff from Cockrell anytime Barford questioned Plaintiff. (Barford Decl., ¶ 5.) In one instance after Barford informed Plaintiff that Tri-City expected Plaintiff to work independently and that Barford would provide backup, Plaintiff responded with an email that stated Barford lacked “the HR knowledge necessary to serve as my backup.” (Barford Decl., ¶ 8, Ex. 8.) In another instance after Barford informed Plaintiff that an issue involving an unnamed employee would be handled by Torregano, Plaintiff responded with an email objecting to any assistance or interference with Plaintiff’s handling of the issue. (Barford Decl., ¶ 10-11, Ex. 9-10.)

On January 23, 2023, Plaintiff alleges Torregano hired a new human resources analyst without obtaining Plaintiff’s input in the hiring process even though Plaintiff was responsible for the HR department according to a March 14, 2022, email. (Kears Decl., ¶ 23, Ex. 6.) Previously, on January 17, Plaintiff sent these allegations to Barford via email. (Barford Decl., ¶ 12, Ex. 11.) According to Torregano, Plaintiff was not exclusively responsible for recruitment and screening of human resources staff hires. (Torregano Decl., ¶ 19.)

On February 7, 2023, Plaintiff received an email from Barford informing plaintiff that four of the seven departments assigned to Plaintiff would be reassigned to the new human resources analyst in order to provide Plaintiff relief with a reduced workload. (Kears Decl., ¶ 25, Ex. 7; Barford Decl., ¶ 20-22.) Barford stated this decision was not made in retaliation for Plaintiff’s complaint to the Tri-City governing board but was instead made in response to complaints from Cockrell and Kears regarding their workload. (Barford Decl., ¶ 23.)

On February 21, 2023, Plaintiff alleges Barford and Hundal came into Plaintiff’s office and provided written notice that Plaintiff was to be placed on administrative leave pending an investigation for misconduct. (Kears Decl., ¶ 29, Ex. 8.) According to Plaintiff, Defendants refused to tell Plaintiff what the alleged misconduct was. (Kears Decl., ¶ 29; Hundal Decl., ¶ 18.) Prior to Plaintiff being put on administrative leave, Hundal claims Tri-City hired an independent attorney investigator on February 17 to investigate Plaintiff for insubordination as well as unauthorized access to and disclosure of confidential personnel records. (Hundal Decl., ¶ 17.) Previously on January 11, Tri-City also retained another independent attorney investigator to investigate Plaintiff’s November 4 allegations made to the Tri-City governing board and Plaintiff’s January 17 allegations of retaliation. (Hundal Decl., ¶ 12-13.)

Adverse Employment Action

Based on the above allegations, Plaintiff appears to allege the following adverse employment actions: (1) assignment to a different supervisor, (2) isolation from a coworker and the human resources department, (3) changes to job responsibilities (including increased workload and later, a decreased workload), and (4) ultimately, being placed on administrative leave.

While retaliation is not limited to hiring or firing, it “must result in a substantial adverse change in the terms and conditions of the plaintiff's employment.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.) However, “[a] change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient” as such a standard could encourage frivolous suits for any possible slight caused by filing a discrimination complaint and inappropriately lead to courts micromanaging a business’s employment practices. (Ibid.) “[A]n action constitutes actionable retaliation only if it had a substantial and material adverse effect on the terms and conditions of the plaintiff's employment.” (Ibid.)

In this case, because “[m]ere oral or written criticism of an employee or a transfer into a comparable position does not meet the definition of an adverse employment action under FEHA,” the court finds Plaintiff’s reassignment, alleged isolation, and changes to workload are not adverse employment actions. (Id., at p. 1457.) In fact, the evidence seems to demonstrate the opposite.

In placing Plaintiff under a different supervisor, it appears Tri-City was attempting to avoid any further conflicts between Plaintiff and Torregano. And then after Plaintiff made multiple complaints about Barford providing insufficient support for Plaintiff’s workload, Tri-City hired a new staff member and reassigned some of Plaintiff’s duties.

However, being placed on administrative leave can constitute adverse employment action because it results in a substantial, material, and adverse change to Plaintiff’s employment. In Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, being placed on administrative leave constituted an adverse employment action where it was done for the purposes of investigating the plaintiff and there was evidence defendant intended to fire plaintiff. (Id., at p. 366-367.) Defendants attempt to distinguish this case by claiming there is no evidence Tri-City actually intends to fire Plaintiff as their investigation has not yet concluded. Yet in Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, the court held temporary administrative leave with pay still constituted adverse employment action because plaintiff had been removed from a “highly desirable position” for a period of months. (Id., at p. 374.) Similarly, Plaintiff was removed from Plaintiff’s position as a senior human resources analyst and placed on administrative leave with pay. The court finds this qualifies as a substantial, material, and adverse change to Plaintiff’s previous employment. 

Lastly, the court determines whether Plaintiff has established that Plaintiff’s protected activity was a contributing factor to Plaintiff being placed on administrative leave by the preponderance of the evidence. (Labor Code, § 1102.6.) To establish the protected activity was a contributing factor, “plaintiffs may satisfy their burden of proving unlawful retaliation even when other, legitimate factors also contributed to the adverse action.” (Lawson, supra, 12 Cal.5th at p. 713-714.) In this case however, Plaintiff fails to establish how Plaintiff’s report to the governing board was any contributing factor to the investigation.

Plaintiff argues “Plaintiff has direct evidence of retaliation in what amounts to a written admission by Defendants that she was placed on paid administrative leave and is being investigated for her ‘alleged misconduct’ as a direct result of her whistleblowing” and points to Plaintiff’s Exhibit 10. (Suppl. Brief, p. 6:22-26.) However, the memorandum cited by Plaintiff is a rescheduling notice by Hundal regarding Tri-City’s investigation into Plaintiff’s whistleblower claims, not the separate investigation into Plaintiff’s alleged misconduct that provided the basis for being placed on administrative leave. (Hundal Decl., ¶ 12-13, 17.) To the extent Plaintiff suggests the investigation into Plaintiff’s complaints was already completed on December 8, 2022, the court finds this argument mischaracterizes the evidence. On December 8, 2022, the letter from Tri-City’s general counsel merely confirmed that sign-on bonuses were being deducted and that counsel instructed Tri-City’s finance department to cease the practice. (Kears Decl., Ex. 3.) The general counsel did not state an investigation had taken place. Furthermore, Tri-City’s investigation also includes Plaintiff’s subsequent allegations involving the hiring of the additional human resources analyst in January 2023.

Therefore, because Plaintiff has not established how disclosing violations of state payroll law had any effect on Plaintiff being placed on administrative leave, the court finds that Plaintiff has not established a prima facie case of retaliation. Thus, Plaintiff is not entitled to temporary injunctive relief pursuant to Labor Code section 1102.62.

Preliminary Injunction

In analyzing Plaintiff’s request for temporary injunctive relief pursuant to the standard for preliminary injunctions, Plaintiff’s request also fails. In analyzing the likelihood of Plaintiff’s success on the merits, the discussion above is instructive. Because Plaintiff’s declaration is insufficient to establish a prima facie case of retaliation, Plaintiff’s likelihood of success on the merits on this retaliation allegation are correspondingly low. Furthermore, the relative harm caused by denying Plaintiff’s request for temporary injunctive relief is low. While Plaintiff has been placed on administrative leave, the court notes Plaintiff is still receiving a salary and has not been terminated.

Furthermore, a copy of Tri-City’s employment policies demonstrates Plaintiff is entitled to contest or appeal any disciplinary action taken by Defendants. (Defense Ex. 15, p. 83-88.) Finally, the court can remedy any reduction in salary or subsequent disciplinary actions by an award of damages if Plaintiff’s action is ultimately successful. (Tahoe Keys Property Owners’ Assn. v. State Water Resources Control Board (1994) 23 Cal.App.4th 1459, 1471 [“In general, if the plaintiff may be fully compensated by the payment of damages in the event [plaintiff] prevails, then preliminary injunctive relief should be denied.”].)  Here, the court finds that Plaintiff may be fully compensated by the payment of damages in the event Plaintiff prevails.

Accordingly, because Plaintiff cannot establish grounds for temporary injunctive relief pursuant to Labor Code section 1102.62 or the standard for preliminary injunctions, Plaintiff’s request is DENIED.

CONCLUSION

Based on the foregoing, the court DENIES Plaintiff’s request for a preliminary injunction. Furthermore, the court VACATES the temporary restraining order entered February 28, 2023.