Judge: Theodore R. Howard, Case: 22-1252452, 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 OVERRULED.

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.)

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 SAC contains a heading in the Factual Allegations that reads “Plaintiff was Discriminated Against” and indicates that twice she applied for the position of Assistant District Attorney and both times four men were promoted over her. (SAC ¶ 11-14). She further asserts “Plaintiff was equally or more qualified than the men chosen” and that Plaintiff was denied promotions on account of her sex and was paid less than men for the same work.” (SAC ¶ 15). These allegations adequately plead an adverse employment action that Plaintiff asserts is based on her sex. As such the demurrer to the second cause of action for Discrimination in Violation of FEHA is OVERRULED.

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.)  Plaintiff pleads specific instances of Mr. Spitzer accusing Plaintiff of dishonesty in the SAC at ¶ 31.  Taking the allegations of the SAC as true, they 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 is therefore OVERRULED.

Moving party to give notice.