Judge: Theodore R. Howard, Case: 22-1252445, Date: 2023-05-18 Tentative Ruling

The Demurrer to the Second Amended Complaint filed by Defendant County of Orange (“Defendant”) on 12/2/22 is SUSTAINED with 20 days leave to amend.

As a preliminary matter, the court takes judicial notice of the discovery requests and responses as requested by Defendant, in the absence of any objection by Plaintiff.  

A demurrer “tests the legal sufficiency of factual allegations in a complaint.” (Rakestraw v. Cal. Physicians’ Service (2000) 81Cal.App.4th 39, 42.) Plaintiffs’ well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “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.)

Defendant demurs to the second cause of action for discrimination in violation of the Fair Employment and Housing Act (“FEHA”) and the third cause of action for retaliation in violation of FEHA on the grounds that Plaintiff has not plead an adverse employment action.

In regard to a claim of discrimination under Govt. Code § 12940, “[g]enerally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 355.)

Adverse employment actions include not only “ultimate employment actions” like termination or demotion but “also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement”. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1054.)  “The phrase “terms, conditions, or privileges” of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide.” (Ibid.) “Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h).” (Ibid.)

Here, the second cause of action in the SAC only vaguely pleads “Defendant engaged in unlawful employment practices in violation of FEHA by discriminating against Plaintiff because of sex and/or gender.” (SAC ¶ 35.) The Factual Allegations section contains subheadings containing allegations that “Plaintiff was Subjected to a Hostile Work Environment Based on Sex” and “Plaintiff was Retaliated Against” but no allegations specifying discrimination. There are no allegations specifying an adverse employment action. The only allegation in the SAC is a paragraph detailing the Board’s failure to take corrective or preventative action, which describes OCDA managers “minimalizing the impact of Mr. LoGalbo’s misconduct in retaliation for Plaintiff’s participation in the County’s investigations” with the conclusion that “this has undermined Plaintiff’s job performance and ability for advancement within the OCDA.” None of the allegations amount to an adverse employment action suffered by Plaintiff, as there are only vague conclusory allegations, or vague statements made about “the victims” as a whole, not identifying Plaintiff as part of that group.  As such, Plaintiff has failed to properly plead the required adverse employment action and the demurrer is SUSTAINED with leave to amend.

As to cause of action three for retaliation in violation of FEHA, “Employees may establish a prima facie case of ... retaliation by showing that (1) they engaged in activities protected by the FEHA, (2) their employers subsequently took adverse employment action against them, and (3) there was a causal connection between the protected activity and the adverse employment action.” (Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4th 243, 287.) The SAC alleges that “Defendants’ conduct in 1) commenting that Plaintiff was not a “real” victim of Mr. LoGalbo, despite the findings of a third-party investigator; 2) accusing Plaintiff of being dishonest in the investigation, impugning her honesty and integrity, which she needs to effectively do her job; 3) chastising employees for participating in the investigation; and 4) awarding employees who speak out against Plaintiff, are all retaliatory acts that have adversely affected the terms, conditions and/or privileges of Plaintiff’s employment, and which have undermined Plaintiff’s ability to effectively do her job and jeopardized her ability for advancement within the OCDA.” (SAC ¶ 50.) There are no cited instances where Plaintiff was specifically identified as the target of any comments or instances where her honesty and integrity were specifically questions.  Thus, the allegations fail to show a pattern of behavior that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion.  The demurrer to the third cause of action should therefore be SUSTAINED with leave to amend.

Moving party to give notice.