Judge: Wesley L. Hsu, Case: 22PSCV01805, Date: 2023-03-23 Tentative Ruling

Case Number: 22PSCV01805    Hearing Date: March 23, 2023    Dept: L

Tentative Ruling

Defendant California Department of Corrections and Rehabilitation’s Demurrer to Complaint is OVERRULED.

Background   

Plaintiff Francine Mitchell (“Plaintiff”) alleges as follows: Plaintiff, a Hispanic female, has worked for the California Department of Corrections and Rehabilitation (“CDCR”) for 26 years and holds the rank of Parole Agent III, Unit Supervisor, at the DAPO’s El Monte GPS Parole Unit. In July 2017, Plaintiff overheard an African-American colleague, Miatta Watts (“Watts”), refer to other CDCR department employees as “The Mexicans” to supervisor Ron Warner, a Caucasian male (“Watts/Warner incident”). Warner did not comment or correct Watts for that remark. Plaintiff reported the Watts/Warner incident in email and in person to Acting Chief Deputy Jason Johnson (“Johnson”), who is African-American. After Plaintiff complained to Johnson, Plaintiff was assigned to the window reception desk where she worked alongside low-level clerical personnel. Plaintiff complained to Johnson and was relocated to the Training Department back office storage room. Plaintiff lodged a formal complaint of workplace harassment and hostile work environment in August 2017; shortly thereafter Johnson criticized parole agent Raul Sandoval for allowing Plaintiff to drive a state vehicle. Plaintiff filed her first EEO complaint on or about August 7, 2017 and almost immediately was treated differently by CDCR than other non-complaining CDCR employees. Plaintiff learned that another non-complaining Light Duty employee was allowed to travel to/from a supposedly “restricted” area while Plaintiff was not. On August 11, 2017, Johnson notified Plaintiff that CDCR had found no EEO violations. On August 28, 2017, CDCR notified Plaintiff that it was terminating her light duty status and that she would have to be off work due to continued restrictions. On May 1, 2018, Plaintiff returned to work as the Unit Supervisor, but Plaintiff’s African American supervisors gave preferential treatment to African American CDCR employees, ignored her email inquiries regarding same, orchestrated “bogus, unfounded” disciplinary charges against her after receiving her complaints, interfered in her effort to secure a Chief Deputy Warden position and wrongfully placed negative information into her PE in June 2019. In or around November 2020, Plaintiff applied for the position of District Administrator out of class, but was passed over and forced to transfer positions because of her history of having made complaints in the workplace of EEO violations and filing a lawsuit against CDCR and several of its managing agents.

On November 14, 2022, Plaintiff filed a complaint, asserting causes of action against CDCR and Does 1-20 for:

1.      Racial Discrimination—FEHA

2.      Retaliation—FEHA

3.      Failure to Prevent Discrimination/Harassment & Retaliation—FEHA

A Case Management Conference is set for March 23, 2023.

Legal Standard

A demurrer may be made on grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) 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 placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

CDCR demurs to the second and third causes of action in Plaintiff’s complaint, on the basis that they both fail to state facts sufficient to constitute causes of action.

Request for Judicial Notice

The court rules on CDCR’s Request for Judicial Notice (“RJN”) as follows: Granted as to Exhibit A (i.e., Department of Fair Employment and Housing [“DFEH”] Complaint filed by Plaintiff on or about October 18, 2017, DFEH Inquiry No. 953942-317162); Granted as to Exhibit B (i.e., DFEH complaint filed by Plaintiff on or about December 19, 2017, DFEH No. 201712-00487719); Granted as to Exhibit C (i.e., DFEH Notice of Case Closure and Right to Sue Notice dated December 19, 2017 regarding DFEH No. 201712-00487719); Granted as to Exhibit D (i.e., DFEH amended complaint filed by Plaintiff on or about August 12, 2019, DFEH No. 201908-07082402); Granted as to Exhibit E (i.e., Government Claim by Plaintiff received by the Government Claims Program on December 2, 2019); Granted as to Exhibit F (i.e., DFEH amended complaint filed by Plaintiff on or about September 14, 2021, DFEH No. 202109-14674506 and Notice to Complainant’s Attorney dated September 14, 2021); Granted as to Exhibit G (i.e., complaint filed April 24, 2020 in case styled Mitchell v. California Department of Corrections and Rehabilitation, et al., Case No. 20PSCV00291 [i.e., “Case No. 20PSCV00291”]); Granted as to Exhibit H (i.e., Second Amended Complaint filed May 13, 2021 in Case No. 20PSCV00291) and Granted as to Exhibit I (i.e., October 8, 2021 ruling on demurrer to Plaintiff’s SAC in Case No. 20PSCV00291).

Merits

Second Cause of Action (i.e., Retaliation—FEHA)

CDCR first demurs to Plaintiff’s second cause of action on the basis that it is “entirely dependent on allegations which originated from Plaintiff’s 2017 DFEH complaints and upon which Plaintiff failed to file suit within the applicable one (1) year statute of limitations.” (Demurrer, 7:7-10).

“Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the [DFEH] and must obtain from the [DFEH] a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA.” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4^th 479, 492; see also Gov. Code §§ 12960, 12965, subd. (b).)[1] “The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA.” (Id.) The time-period to file a claim with the DFEH (now CRD) was extended from one year to three years effective as of January 1, 2020. (Gov. Code §§ 12960.)[2] Government Code § 12965 provides that “[a]fter an employee files a complaint and the DFEH does not issue an accusation within a specified period, the DFEH must issue a right-to-sue letter notifying the employee that he or she may bring a civil suit within one year of the date of the notice.” (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4^th 1402, 1413.) “Section 12965’s one-year deadline from the right-to-sue notice is a condition on a substantive right rather than a procedural limitation period for commencement of an action and thus causes the right which previously arose and on which a suit could have been maintained, to expire.” (Id. [quotations and citation omitted].)

More specifically, CDCR asserts that the allegations contained in ¶¶ 9-16 of Plaintiff’s complaint all occurred in 2017 and were the subject of Plaintiff’s two DFEH complaints filed on or about October 18, 2017 and on or about December 19, 2017, respectively. (See RJN, Exhs. A & B.) Plaintiff received a right-to-sue notice on December 19, 2017. (Id., Exh. C.) Plaintiff, then, failed to exhaust her administrative remedies regarding these allegations and they cannot be the basis for this lawsuit.

CDCR, however, fails to adequately address administrative exhaustion with respect to ¶ 19, which alleges retaliation occurring in or around July 2021 (i.e., “[i]n or around July 2021, Complainant was passed over completely and forced to transfer positions, all because of her history of having made complaints in the workplace of EEO violations and filing suit in the Los Angeles Superior Court against CDCR and several of CDCR’s managing agents”). Plaintiff has pled compliance with exhaustion of administrative remedies in ¶¶ 21 and 22. Inasmuch as CDCR cannot demur to part of a cause of action, the court overrules CDCR’s demurrer with respect to this argument.

CDCR next demurs to Plaintiff’s second cause of action on the basis that Plaintiff has not alleged facts establishing that she was subjected to an adverse employment action. CDCR argues that “Plaintiff’s Complaint, including the allegations in paragraphs 18 and 19, boils down to the idea that she has not been selected for a promotion and she has seniority over others who have been promoted.” (Demurrer, 15:2-4.) FEHA, however, “not only protects against ultimate employment actions such as 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.” (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4^th 283, 299 [quotations and citation omitted].) CDCR’s demurrer is overruled on this basis.

Third Cause of Action (i.e., Failure to Prevent Discrimination/Harassment & Retaliation—FEHA)

CDCR, without more, demurs to Plaintiff’s third cause of action on the basis that “Plaintiff did not state facts sufficient to establish failure to prevent retaliation and harassment.” (Demurrer, 7:15-16). CDCR fails to provide the court with any analysis in support of the above statement. CDCR’s demurrer to the third cause of action, then, is overruled.