Judge: Salvatore Sirna, Case: 22PSCV01193, Date: 2024-07-18 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 22PSCV01193    Hearing Date: July 18, 2024    Dept: G

Defendant County of Los Angeles’s Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues

Respondent: Plaintiff Delores Plaintiff

TENTATIVE RULING

Defendant County of Los Angeles’s Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues is DENIED IN PART as to the first and ninth causes of action and GRANTED IN PART as to the second, third, fourth, fifth, sixth, seventh, eighth, tenth, and twelfth causes of action.

BACKGROUND

This is an action for employment discrimination and harassment. In 1985, the Los Angeles County Department of Children and Family Services (DCFS) hired Plaintiff Delores Plaintiff and promoted Plaintiff to children’s social worker in 1990. From 2020 to 2022, Plaintiff alleges DCFS supervisors harassed and discriminated against Plaintiff based on age, disability, and race. When Plaintiff reported their conduct, Plaintiff alleges they retaliated with further harassment, false allegations of misconduct, disciplinary actions and workload adjustments.

On October 10, 2022, Plaintiff filed a complaint against DCFS, the County of Los Angeles (the County), and Does 1-50, alleging the following causes of action: (1) harassment based on race, (2) harassment based on age, (3) harassment based on physical disability, (4) racial discrimination, (5) age discrimination, (6) physical disability discrimination, (7) failure to engage in the interactive process, (8) failure to make reasonable accommodation, (9) failure to prevent discrimination and harassment, (10) retaliation in violation of the Fair Employment and Housing Act (FEHA), (11) retaliation in violation of Labor Code section 98.6, and (12) whistleblower retaliation in violation of Labor Code section 1102.5.

On April 25, 2024, the parties stipulated to dismiss Plaintiff’s eleventh cause of action, request for punitive damages, and request for prejudgment interest.

On May 3, 2024, the County and DCFS (collectively, the County) filed the present motion for summary judgment or adjudication. On May 7, 2024, the County refiled its motion with additions and corrections.

A hearing on the present motion is set for July 18, 2024, along with a case management conference/status conference re: ADR.

ANALYSIS

The County moves for summary judgment or adjudication on Plaintiff’s entire action. For the following reasons, the court DENIES the County’s motion as to the first and ninth causes of action and GRANTS the County’s motion as to the second, third, fourth, fifth, sixth, seventh, eighth, tenth, and twelfth causes of action.

Legal Standard

A motion for summary judgment or adjudication provides “courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) It must be granted “if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119, quoting Code Civ. Proc., § 437c, subd. (c).) To establish a triable issue of material fact, the opposing party must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

Untimely Reply Filings

As an initial matter, the court notes the County filed a reply, separate statement, supplemental evidence, and objections four (4) court days before the hearing on the present motion. Because these filings were not submitted at least five (5) court days before the hearing as required by code, the court finds them to be untimely and declines to consider them. (Code Civ. Proc., § 437c, subd. (b)(4); Cal. Rules of Court, Rule 3.1354, subd. (a).)

Further, the court finds there is no prejudice to the County as the Court grants their motion as to all causes of action except for the first and ninth. As to them, the County cannot cure the deficiencies noted below in reply filings as reply papers are generally not permitted to introduce new evidence not raised in the original motion, especially when the opposing party has not had an opportunity to respond to the additional evidence. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)

Harassment (First, Second, and Third Causes of Action)

The County argues Plaintiff’s first cause of action for harassment based on race, second cause of action for harassment based on age, and third cause of action for harassment based on physical disability in violation of FEHA fail because Plaintiff cannot establish severe or pervasive conduct. The County also argues Plaintiff’s third cause of action fails because Plaintiff cannot establish Plaintiff had a physical disability.

The court disagrees as to the first cause of action, but agrees as to the second and third causes of action.

Legal Standard

FEHA prohibits harassment of an employee “because of 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. Code, § 12940, subd. (j)(1).) “To establish a prima facie case of harassment, [Plaintiff] must show that (1) [Plaintiff] is a member of a protected class; (2) [Plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on [Plaintiff’s] protected status; (4) the harassment unreasonably interfered with [Plaintiff’s] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 563.)

A hostile work environment is created “when the harassing behavior is¿pervasive¿or¿severe.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) In other words, the harassment must be “severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [protected status].” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462 (Miller).) Thus, “an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283 (Lyle).)

In determining if harassment is severe enough to be actionable, “[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances. [Citation.]” (Miller, supra, 36 Cal.4th at p. 462, quoting Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81-82 (Oncale).) This is an inquiry requiring “careful consideration of the social context in which particular behavior occurs and is experienced by its target” in which “[c]ommon sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . . . and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.” (Ibid, quoting Oncale, supra, 523 U.S. at p. 81-82.)

Race-Based Harassment

The Complaint alleges the following instances of race-based harassment. In March 2020, DCFS promoted a new assistant regional administrator, who the Complaint alleges was rumored to not like Black people, as Plaintiff’s supervisor. (Complaint, ¶ 12(a).) The supervisor then began to harass Plaintiff, a Black woman, by ignoring Plaintiff, looking at Plaintiff in a “funny” manner, and criticizing Plaintiff’s work performance. (Complaint, ¶ 10(a), 12(a).) Plaintiff’s other Black colleagues reported the same negative treatment by the supervisor. (Complaint, ¶ 12(a).) In addition to these instances, the Complaint also alleges other instances of harassment where supervisors berated Plaintiff, sent incessant emails, and made endless corrections to Plaintiff’s work. (Complaint, ¶ 12(c).) These other allegations, however, do not allege a connection to Plaintiff’s race.

In moving for summary judgment, the County argues the following facts are undisputed. In  deposition, Plaintiff was only able to identify two (2) instances of race-related comments by DCFS employees. (Defendants’ Separate Statement (DSS), ¶ 4.) In the first instance, Plaintiff was watching a training video with other employees when a supervisor named Livi Blanke asked if they were watching “The Woman King.” (DSS, ¶ 4.) Blake did not explicitly state or imply that the remark was about Plaintiff. (DSS, ¶ 5-6.) In the second instance, another supervisor named Salvador Cazares stated “she’s really strong” in a telephone conversation when Plaintiff approached Cazares’ cubicle. (DSS, ¶ 4, 7-9.)

The County argues these two instances are insufficient to demonstrate severe or pervasive harassment as a matter of law. (Motion, p. 8:11-9:4.) However, these are not the only incidents of race-base harassment alleged. As detailed above, the Complaint also alleges Plaintiff was subjected to other forms of race-based harassment by a supervisor that included being ignored, stared at, and criticized. (Complaint, ¶ 12(a).) While harassment is often verbal, the court recognizes it may also include nonverbal conduct designed to send “an offensive message to the harassed employee.” (See Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 877, quoting Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) In Plaintiff’s deposition, County’s counsel asked Plaintiff to “please tell me every derogatory or negative comment anyone has ever made to you about your race.” (DSS, ¶ 4; MSJ, Ex. 2, p. 38:23-25.) The County’s counsel also stated, “you need to tell me the comments that you claim were made to you by anyone at the County of Los Angeles related to your race.” (DSS, ¶ 4; MSJ, Ex. 2, p. 48:7-9.) Nowhere in the cited portions of the deposition, however, does the County’s counsel inquire about Plaintiff’s other non-verbal allegations of harassing conduct.

The failure to address a material allegation in the pleadings by a moving party defendant is fatal to a motion for summary judgment or adjudication on that cause of action or issue. (See Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 171.) This is because the allegations in the pleading frame the material facts at issue and the failure to address these allegations constitutes a failure to establish an absence of triable material facts. (Id., at p. 172-173.) Here, the County’s motion and separate statement both avoid discussion of Plaintiff’s other harassment allegations. Because the County does not address them, the court finds the County cannot establish an absence of triable material facts as to this cause of action.

Accordingly, the County’s motion is DENIED as to the first cause of action for harassment based on race.

Age-Based Harassment

The Complaint alleges Plaintiff’s supervisors frequently implied Plaintiff was unable to carry out simple work tasks due to Plaintiff’s age. (Complaint, ¶ 12(e).) Although the Complaint also alleges other instances of harassment where supervisors berated Plaintiff, sent incessant emails, and made endless corrections to Plaintiff’s work, the Complaint fails to allege any connection to Plaintiff’s age. (Complaint, ¶ 12(c).)

In moving for summary judgment, the County argues the following facts are undisputed. In  deposition, Plaintiff was only able to identify one instance of comments being made about Plaintiff’s age. (DSS, ¶ 14.) In March 2020, Plaintiff stated Plaintiff’s supervisor, Kimberly Cardozo, told Plaintiff that Plaintiff needed to retire and provided Plaintiff information on how to do so. (DSS, ¶ 13-14.)

The County argues this remark falls far short of stating a claim for age-based harassment. (Motion, p. 9:7-9.) The County asserts that there can be no arguable claim that a single request to retire constitutes pervasive harassment. And as to severity, the circumstances of this remark do not support such a determination. When Cardozo made the comment, Plaintiff was in Cardozo’s office. (MSJ, Ex. 2, p. 54:14-22, 578:6-10.) Plaintiff found the comment “disturbing” because Cardozo did not know Plaintiff. (MSJ, Ex. 2, p. 54:20-22.) Based on these facts, however, the court  finds no reasonable factfinder could determine a single request to retire from a supervisor to an employee constitutes severe age-based harassment. Because the County has established an absence of triable material facts, the burden now shifts to Plaintiff to establish the existence of a triable issue of fact.

In opposition, Plaintiff’s separate statement notes Cardozo was aware Plaintiff had technological issues. (Plaintiff’s Separate Statement (PSS), ¶ 13.) In support of this fact, Plaintiff cites to Cardozo’s deposition where Cardozo stated, “[f]rom what I'm aware of, when [Plaintiff] was shown how to navigate a certain program or go into a certain area in the computer, when she was shown, she didn't retain the information to repeat that task.” (Opp., Ex. B, p. 259:8-11 [e.p. 125].) It is unclear to the court how this fact establishes Plaintiff was facing age-based harassment. Because Plaintiff’s separate statement failed to identify any other instance of age-based harassment directed at Plaintiff, the court finds Plaintiff failed to establish an issue of triable fact that defeats the County’s motion on the claim of age-based harassment.

Accordingly, the County’s motion is GRANTED as to the second cause of action for age-based harassment.

Physical Disability-Based Harassment

The Complaint alleges Plaintiff requires a stand-up desk and special computer screen as recommended by Plaintiff’s doctor. (Complaint, ¶ 10(c).) In January 2022, the Complaint alleges DCFS replaced Plaintiff’s desktop computer with a Chromebook which prevented Plaintiff from utilizing the stand-up desk and special computer screen. (Complaint, ¶ 12(h).) The Complaint does not allege any other instance of harassment that was based on Plaintiff’s alleged physical disability.

In moving for summary judgment, the County argues the Complaint fails to allege a protected physical disability. (Motion, p. 9:17-10:1.) Because the pleadings frame the issues, a moving party defendant is not required “to negate elements of causes of action plaintiffs never pleaded.” (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 182 (Melican).) “Physical disability under FEHA includes ‘[h]aving any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that’ both affects one or more of the body's major systems and ‘[l]imits a major life activity.’” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 584, quoting Gov. Code, § 12926, subd. (m)(1).)

Here, while the Complaint alleges Plaintiff needs accommodations, the court  finds the Complaint entirely fails to allege the physical disability requiring those accommodations. Because no physical disability is alleged, the County is not required to establish an absence of triable material fact on this issue as this cause of action is facially deficient.

Accordingly, the County’s motion is GRANTED as to the third cause of action for physical-disability-based harassment.

Discrimination (Fourth, Fifth, and Sixth Causes of Action)

The County contends Plaintiff’s fourth cause of action for racial discrimination, fifth cause of action for age discrimination, and sixth cause of action for physical disability discrimination in violation of FEHA fail because Plaintiff cannot establish a prima facie case, the County had legitimate reasons for its actions, and Plaintiff lacks substantial evidence of pretext. The court agrees.

Legal Standard

A prima facie case of discrimination “requires a showing that: (1) the plaintiff was a member of a protected class; (2) the plaintiff was qualified for the position sought or was performing competently in the position held; (3) the plaintiff suffered an adverse employment action; and (4) the adverse action occurred under some circumstance suggesting discriminatory motive.” (Hoglund v. Sierra Nevada Memorial-Miners Hospital (2024) 102 Cal.App.5th 56, 74.) If an employee establishes a prima facie case of discrimination, the employer must then establish “its action was taken for a legitimate, nondiscriminatory reason.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 355-356.)

Once it has done so, “plaintiff must then have the opportunity to attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.” (Id., at p. 356.) It is insufficient to “simply show the employer’s decision was wrong, mistaken, or unwise. Rather, the employee ‘must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, [citation], and hence infer that the employer did not act for the [ ... asserted] non-discriminatory reasons.’ [Citations.]” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807, quoting Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)

Discussion

Despite alleging three separate causes of action for discrimination, the Complaint only uses the word “discrimination” once in its factual allegations. (See Complaint, ¶ 8-16.) In paragraph 12(k), the Complaint alleges DCFS retaliated, harassed, and discriminated against Plaintiff when they investigated Plaintiff for allegedly working overtime without authorization. (Complaint, ¶ 12(k).) The Complaint fails, however, to draw any nexus between the investigation and Plaintiff’s race, age, or physical disability. Since the pleadings frame the issues, a moving party defendant is not required “to negate elements of causes of action plaintiffs never pleaded.” (Melican, supra, 151 Cal.App.4th at p.182.) Accordingly, the court finds the Complaint fails to allege a prima facie case as to these causes of action, and the County is not required to establish an absence of triable material fact.

Therefore, the County’s motion is GRANTED as to these causes of action.

Failure to Accommodate (Seventh and Eighth Causes of Action)

The County maintains Plaintiff’s seventh cause of action for failure to engage in the interactive process and eighth cause of action for failure to make reasonable accommodations in violation of FEHA fail because Plaintiff cannot establish the existence of a physical disability. As noted above, the Court has found the Complaint failed to adequately allege Plaintiff suffered from a physical disability that would entitle Plaintiff to accommodations pursuant to FEHA.

Accordingly, the County’s motion is GRANTED as to these causes of action.

Failure to Prevent Harassment and Discrimination (Ninth Cause of Action)

The County argues Plaintiff’s ninth cause of action for failure to prevent harassment and discrimination in violation of FEHA fails because Plaintiff’s underlying harassment and discrimination claims lack merit. The court finds this argument fails for the same reasons noted above since the court has found that a viable cause of action for race-based harassment remains.

Accordingly, the County’s motion is DENIED as to this cause of action.

Retaliation in Violation of FEHA (Tenth Cause of Action)

The County contends Plaintiff’s tenth cause of action for retaliation in violation of FEHA fails because Plaintiff cannot establish a prima facie case and has no evidence of pretext. The court agrees.

Legal Standard

A cause of action for retaliation pursuant to FEHA requires that “(1) the plaintiff establish a prima facie case of retaliation, (2) the defendant articulate a legitimate nonretaliatory explanation for its acts, and (3) the plaintiff show that the defendant's proffered explanation is merely a pretext for the illegal termination.” (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.) “To establish a prima facie case, the plaintiff must show that [plaintiff] engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the protected activity and the employer's action.” (Id., at p. 476.)

Plaintiff’s Prima Facie Case

The Complaint alleges Plaintiff engaged in protected activity by reporting the alleged harassment and discrimination that was committed by DCFS supervisors. (Complaint, ¶ 11(a).) The Complaint also alleges Plaintiff engaged in protected activity by reporting DCFS supervisors to law enforcement for forging Plaintiff’s name on court documents. (Complaint, ¶ 11(b).) The Complaint then alleges the following adverse employment actions. First, after Plaintiff reported a supervisor’s alleged race-based harassment in 2020, Plaintiff alleges the supervisor retaliated against Plaintiff by increasing Plaintiff’s workload with difficult cases to paint a false picture of incompetence. (Complaint, ¶ 12(b).) In May 2021, Plaintiff was transferred to another DCFS section where new supervisors allegedly continued to harass Plaintiff by berating Plaintiff, sending incessant emails, and making endless or meritless corrections to Plaintiff’s work. (Complaint, ¶ 12(c), (d).) When Plaintiff reported this additional harassment, Plaintiff alleges DCFS supervisors retaliated by falsely accusing Plaintiff of fraudulently signing reports and disciplining Plaintiff with desk duty. (Complaint, ¶ 12(f), (g).)

In January 2022, Plaintiff alleges DCFS further retaliated against Plaintiff by replacing Plaintiff’s desktop computer with a Chromebook which prevented Plaintiff from using a stand-up desk and special screen that were recommended by Plaintiff’s doctor. (Complaint, ¶ 12(h).) In May 2022, Plaintiff alleges DCFS suspended Plaintiff without pay for thirty (30) days in retaliation for Plaintiff making complaints, reporting fraudulent reports to law enforcement, and resisting ongoing harassment. (Complaint, ¶ 12(j).) Finally, in the summer of 2022, DCFS allegedly retaliated against Plaintiff by subjecting Plaintiff to an internal affairs investigation for alleged misconduct and working unauthorized overtime. (Complaint, ¶ 12(j), (k).) While the Complaint fails to allege a causal connection between Plaintiff’s protected activity and the alleged harassment that occurred after being transferred in May 2021, the Complaint does allege the other adverse employment actions were the result of Plaintiff’s complaints. (Complaint, ¶ 12(b), (f)-(k).)

In moving for summary judgment, the County contends Plaintiff cannot establish a prima face case because the above alleged actions do not constitute adverse employment actions as a matter of law. (Motion, p. 12:9-14:15.) “[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.) This “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.” (Ibid.) The first instances of alleged adverse employment actions the County addresses are Plaintiff’s claims of increased workload after the first complaints of race-based harassment and the alleged fraudulent signing of a report. (Motion, p. 12:25-13:9.)

The County contends these are insubstantial acts, citing to McRae v. Department of Corrections & Rehabilitation (2006) 142 Ca.App.4th 377 (McRae). In that case, the court noted an employer’s retaliatory actions must have a “have a substantial and material adverse effect on the terms and conditions of the plaintiff's employment.” (Id., at p. 387.) The court in McRae goes on to note “that in many cases, the employee is affected by a series of employment actions, at least some of which might not, in and of themselves, constitute a material change in the terms or conditions of employment. In such cases, it is appropriate to consider the plaintiff's allegations collectively under a totality of the circumstances approach.” (Id., at p. 387-388.)

Here, even if these individual actions were insufficient to change the terms and conditions of Plaintiff’s employment, the court declines to consider them in a vacuum and considers them further below. While the County also addresses the claims that DCFS staff frequently corrected Plaintiff’s work and overruled Plaintiff’s recommendations, the court notes these allegations need not be addressed since the Complaint fails to allege how they were the result of any protected activity by Plaintiff.

Next, the County contends Plaintiff’s transfers were not adverse employment actions. (Motion, p. 13:10-18.) The Complaint does not allege, however, that they were, but instead suggests the transfers were requested by Plaintiff to remedy the ongoing alleged harassment. (Complaint, ¶ 12(b), (c), (f).) The County also contends the replacement of Plaintiff’s desktop computer with a Chromebook was not adverse because Plaintiff requested the Chromebook and continued to be accommodated. (Motion, p. 13:21-28.) While the undisputed material facts establish Plaintiff requested and received the Chromebook at issue, they do not establish Plaintiff consented to the removal of the desktop computer. (DSS, ¶ 60-62.) Instead, they established Plaintiff was under the impression that Plaintiff could have both devices when Plaintiff made the request. (DSS, ¶ 62.) Thus, the court finds there are no undisputed material facts to suggest Plaintiff consented to the removal of the desktop computer.

The County also suggests the County accommodated Plaintiff because Plaintiff was able to use the laptop in conjunction with a large screen and thus was still able to use the stand-up desk and special screen. (DSS, ¶ 63.) But while the evidence cited in support of this statement of fact establishes Plaintiff was able to connect the Chromebook to a large screen, there is nothing about whether (1) the Chromebook was compatible with the special screen and (2) whether this set up worked with Plaintiff’s desk. (MSJ, Ex. 2, p. 36:10-21.)

Last, the County contends DCFS’s investigations of Plaintiff were not adverse employment actions because Plaintiff did not suffer any actionable consequences. (Motion, p. 14:3-15.) As to the first instance of Plaintiff being placed on desk duty for the allegation that Plaintiff fraudulently signed court reports, the County notes there is no allegation that Plaintiff was disciplined because of the allegation and investigation. (Complaint, ¶ 12(f).) In support, the County cites Brown v. City of Syracuse (2d Cir. 2012) 673 F.3d 141, 150.) But while the court in that case held suspension with pay was not an adverse employment action in that case, the court’s holding was based on the fact the employer “acted ‘in a reasonable manner.’” (Ibid.) In support of its holding, the court cited the following rule:

“The relevant question is therefore whether the employer has simply applied reasonable disciplinary procedures to an employee or if the employer has exceeded those procedures and thereby changed the terms and conditions of employment. Paid suspension during an investigation could thus potentially be adverse if the employer takes actions beyond an employee's normal exposure to disciplinary policies.” (Ibid, quoting Joseph v. Leavitt (2d Cir. 2006) 465 F.3d 87, 92, fn. 1.)

Thus, the Complaint’s failure to allege Plaintiff was disciplined as a result of DCFS’s first investigation does not prevent Plaintiff from alleging the investigation and suspension itself was an adverse employment action. While the County’s argument here does not address the allegation that Plaintiff was suspended for thirty (30) days without pay in May 2022, the County last contends DCFS’s investigation of Plaintiff’s alleged overtime violation was also not actionable because it did not lead to discipline. But as noted above, a lack of discipline does not bar an adverse employment action finding if the investigation was conducted in an unreasonable manner. Here, the Court finds Plaintiff adequately alleged a prima facie case of whistleblower retaliation.  As a result, the burden shifts to the County to establish legitimate and non-retaliatory reasons for the adverse employment actions taken above.

The County’s Legitimate, Non-Retaliatory Reasons and Plaintiff’s Response

First Alleged Act of Retaliation: Increased Caseload

In contending DCFS had legitimate and non-retaliatory reasons for increasing Plaintiff’s case load after Plaintiff filed complaints against Plaintiff’s supervisor for alleged race-based harassment, the County points to the following material facts. At issue are two different types of DCFS cases: continuing services (CS) cases and AB-12 cases.  CS are cases in which DCFS supervises children in the care of parents or reunification proceedings. (DSS, ¶ 20.) AB-12 cases are cases in which DCFS helps prepare young people for adulthood by providing services for budgeting, housing, cooking skills, and education. (DSS, ¶ 21.)

When Kimberly Cardozo became Plaintiff’s supervisor in March 2020, Plaintiff’s caseload consisted of AB-12 cases. (DSS, ¶ 23.) In the County’s separate statement, the County states Plaintiff worked on CS cases and AB-12 cases before Cardozo became Plaintiff’s supervisor. (DSS, ¶ 22.) This fact, however, omits relevant details from the supporting evidence it cites. In Plaintiff’s deposition, Plaintiff acknowledged handling CS cases in the past but stated Plaintiff had not been handling them since 2012 or 2013 when Plaintiff began to handle AB-12 cases. (MSJ, Ex. 2, p. 380:13-23.) Further, Cardozo’s declaration does not contradict Plaintiff as Cardozo merely acknowledges Plaintiff had experience with both case types and is silent as to when Plaintiff last handled a CS case. (Cardozo Suppl. Decl., ¶ 7.)

In April 2020, Plaintiff accused Cardozo of assigning cases unfairly by giving Plaintiff CS cases. (DSS, ¶ 24.) At the time, Plaintiff did not know the relative workload of the other DCFS employees. (DSS, ¶ 26.) In March 2020, Plaintiff had nine (9) AB-12 cases while the average caseload was eighteen (18) to twenty-four (24) cases. (DSS, ¶ 28; Cardozo Suppl. Decl., ¶ 8.) Cardozo assigned Plaintiff CS cases from another probationary DCFS employee who was struggling because Plaintiff had the lowest case count. (DSS, ¶ 29-30.) Because assigning CS cases to Plaintiff based on Plaintiff’s caseload is a legitimate and non-retaliatory reason, the burden shifts back to Plaintiff to establish this justification was a pretext for retaliation.

In opposition, Plaintiff contends Cardozo’s characterization of Plaintiff’s case load is misleading and points to Cardozo’s deposition where Cardozo stated two other case workers had cases in the mid-teens prior to Cardozo’s assignment of the CS cases. (PSS, ¶ 28; Opp., Ex. B, 97:21-98:5.) This statement does not contradict Cardozo’s statement about the average number of cases as Cardozo also repeats in the same deposition that this was the average for Plaintiff’s unit which consisted of at least thirty (30) case workers. (Opp., Ex. B, p. 97:1-6.) And the two case workers with cases in the mid-teens also had additional cases assigned. (Opp., Ex. B, p. 97:12-19.) While Plaintiff contends Cardozo’s testimony is misleading that the number of children in a case affects its assignment, Plaintiff fails to establish how this statement is misleading.

Plaintiff argues Cardozo did not have to distribute cases assigned to the probationary employee.  Instead, Plaintiff claims Cardozo did so as part of a plan to save the probationary employee from being fired which included assigning problematic cases to Plaintiff out of the unit’s thirty employees. (PSS, ¶ 30.) The court finds these facts defeat Plaintiff’s retaliation claim on this issue since it establishes Cardozo’s actions were taken to manage a probationary employee’s workload, and not overburden Plaintiff. To the extent Cardozo selected Plaintiff out of thirty other employees, Cardozo justified this selection by claiming Plaintiff had the smallest workload. Plaintiff failed to contradict this fact with evidence to the contrary.

Accordingly, the court finds there was a legitimate, non-retaliatory reason for Cardozo’s case assignments and, as a result, Plaintiff failed to demonstrate these actions were a pretext for retaliation.

Second Alleged Act of Retaliation: Placing Plaintiff on Desk Duty and Investigating Plaintiff for Allegedly Fraudulent Signatures on Reports

In contending DCFS had legitimate and non-retaliatory reasons for placing Plaintiff on desk duty and investigating Plaintiff for alleged fraud after Plaintiff made additional complaints of harassment and discrimination, the County points to the following material facts. The County states Plaintiff filed two court reports without authorization from Plaintiff’s supervisor, Christina Golan, and also filed a court report without authorization that falsely stated a father had a positive drug test within the last six months. (DSS, ¶ 53-54.) Filing an inaccurate or incomplete court report is a breach of a case worker’s responsibilities and could lead to the court making decisions that put a child in danger or improperly deny reunification. (DSS, ¶ 55-56.) The Court finds these facts sufficient to establish a legitimate and non-retaliatory reason for placing Plaintiff under investigation.

In opposition, Plaintiff admits to filing court reports without authorization because Golan refused to sign them. (PSS, ¶ 53.) But in support of the County’s material facts, the County pointed to DCFS’s Procedural Guide which required case workers to submit their case plan to their supervisor for approval. (MSJ, Ex. 25.) Plaintiff does not point to any separate authority that allowed Plaintiff to bypass Golan’s approval. Thus, Golan’s refusal to sign Plaintiff’s reports did not provide justification for Plaintiff to proceed. Plaintiff also contends Plaintiff’s report about a father’s drug use was correct. (PSS, ¶ 54.) But even if that one report was correct, DCFS’s investigation is still justified by other reports Plaintiff filed without approval.

Accordingly, the court finds there was a legitimate, non-retaliatory reason for DCFS’s investigation, and that Plaintiff failed to demonstrate this reason was a pretext for retaliation.

Third Alleged Act of Retaliation: Removing Plaintiff’s Desktop Computer

Outside of contending Plaintiff consented to the removal of the desktop computer by requesting a Chromebook, the County fails to point to any material facts establishing a legitimate and non-retaliatory reason for limiting Plaintiff to one computer device. (See DSS, ¶ 58-63.) In fact, the County fails to point to any policy that imposed such a requirement in their separate statement. In opposition, Plaintiff presented evidence establishing other employees were allowed to utilize a laptop and desktop computer. (PSS, ¶ 62.) Accordingly, the court finds the County has failed to demonstrate there was a legitimate and non-retaliatory reason for removing Plaintiff’s desktop computer.

Fourth Alleged Act of Retaliation: Thirty-Day Suspension

In contending DCFS had legitimate and non-retaliatory reasons for imposing a thirty-day suspension on Plaintiff, the County points to the following material facts. On April 18, 2022, DCFS issued a notice of suspension to Plaintiff for discourtesy, unprofessional conduct, failure to follow instructions given by management, and submission of court reports without supervisor approval, knowledge, or signature. (DSS, ¶ 74.) The Court finds DCFS’s notice of suspension is sufficient to establish legitimate and non-retaliatory reasons for Plaintiff’s thirty-day suspension.

In opposition, Plaintiff disputes the alleged conduct occurred. (PSS, ¶ 74.) Plaintiff failed, however, to provide specific evidence and respond to each of the allegations in DCFS’s notice. And as noted above, it is undisputed that Plaintiff violated DCFS procedures by submitting case reports without a supervisor’s signature. Because this is one of the grounds for the thirty-day suspension, the court finds there was a legitimate, non-retaliatory reason for Plaintiff’s suspension, and that Plaintiff failed to demonstrate this reason was a pretext for retaliation.

Fifth Alleged Act of Retaliation: Unauthorized Overtime Investigation

In contending DCFS had legitimate and non-retaliatory reasons for investigating Plaintiff for alleged unauthorized overtime, the County points to the following material facts. On June 8, 2022, Plaintiff’s supervisor, Lori Hirota, assigned Plaintiff the “A.M. case” which involved a hospitalized newborn baby. (DSS, ¶ 79; MSJ, Hirota Decl., ¶ 6.) Plaintiff then conducted an after-hours investigation of the baby’s location without Hirota’s authorization. (DSS, ¶ 80.) Hirota did not authorize overtime for Plaintiff because there was no urgency as the baby was already hospitalized and receiving medical care. (DSS, ¶ 81.) Plaintiff claimed overtime for the investigation and was paid even though it was not approved. (DSS, ¶ 82.) The County states Plaintiff was investigated for filing inaccurate time sheets and an unauthorized overtime form. (DSS, ¶ 83.) The Court finds these facts sufficient to establish DCFS has legitimate and non-retaliatory reasons for investigating Plaintiff’s alleged unauthorized overtime claims.

In opposition, Plaintiff contends Plaintiff was not required to obtain Hirota’s approval because an emergency had come up. (PSS, ¶ 80-82.) In a deposition, Plaintiff states there was an emergency because the newborn “was not around when I got the information regarding the welfare and the safety of a newborn child in the hospital.” (Opp., Ex. A, p. 482:12-16.) But even if there was an emergency, Plaintiff failed to point to any procedure or rule that allows Plaintiff to claim overtime without a supervisor’s authorization. Furthermore, while Plaintiff’s actions may be a defense to any discipline, there is nothing to suggest DCFS was unjustified or unreasonable in investigating Plaintiff’s unauthorized overtime claim. Accordingly, the court finds there was a legitimate, non-retaliatory reason for DCFS’s investigation, and that Plaintiff failed to demonstrate this reason was a pretext for retaliation.

Conclusion

Of all acts of retaliation alleged by Plaintiff, the court finds the only act without a legitimate and non-retaliatory reason was the County’s removal of Plaintiff’s desktop computer. But the court finds that as a matter of law, this act alone is insufficient to constitute adverse employment action. “A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient” to establish an adverse employment action. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.) Instead, “plaintiff must show the employer’s retaliatory actions had a detrimental and substantial effect on the plaintiff's employment.” (McRae, supra, 142 Cal.App.4th at p. 377.) Here, no reasonable factfinder could find replacing a desktop computer with a Chromebook had a detrimental and substantial effect on Plaintiff’s employment. While Plaintiff may have preferred the desktop computer, DCFS’s failure to comply with or to honor Plaintiff’s preferences alone do not rise to the level of an adverse employment action that justified a retaliation lawsuit.

Accordingly, the County’s motion is GRANTED as to the tenth cause of action for retaliation in violation of FEHA.

Retaliation in Violation of Labor Code § 1102.5 (Twelfth Cause of Action)

The County maintains Plaintiff’s twelfth cause of action for retaliation in violation of Labor Code section 1102.5 fails because Plaintiff did not comply with claim presentation requirements. The court agrees.

Legal Standard

Pursuant to the Government Claims Act, “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division.” (Gov. Code, § 945.4.) “A claim relating to a cause of action for death or for injury to person or to personal property” must be within six months of the accrual of the cause of action. (Gov. Code, § 911.2, subd. (a).) With certain exceptions, “[t]he filing of a claim is a condition precedent to the maintenance of any cause of action against the public entity and is therefore an element that a plaintiff is required to prove in order to prevail.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 767.)

Discussion

In this case, it is undisputed that Plaintiff failed to file a claim for damages with the County and did not allege compliance with the Government Claims Act in the Complaint. (DSS, ¶ 97-98.) Plaintiff also failed to dispute these facts and did not address this ground in the opposition.

Accordingly, because Plaintiff failed to comply with the claim presentation requirement, the County’s motion is GRANTED as to the twelfth cause of action for retaliation in violation of Labor Code section 1102.5.

CONCLUSION

Based on the foregoing, the court DENIES the County’s motion for summary judgment or adjudication as to the first and ninth causes of action and GRANTS it as to the second, third, fourth, fifth, sixth, seventh, eighth, tenth, and twelfth causes of action.