Opinion
C081389
10-02-2017
WILLIAM CORNELIUS, JR., Plaintiff and Respondent, v. COLUSA COUNTY, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CV24023)
Plaintiff William Cornelius, Jr., appeals from a judgment dismissing three causes of action alleging his employer retaliated against him after he reported that a pay disparity based on gender existed among employees he supervised. The trial court dismissed these retaliation claims because plaintiff did not exhaust his administrative remedies and did not file a valid claim with his employer before seeking redress in the courts. Plaintiff contends that he did exhaust his administrative remedies with the Department of Fair Employment and Housing (the department) and substantially complied with the Government Claims Act (the Claims Act) before filing suit. Finding no merit in plaintiff's contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was hired by Colusa County (the county) on January 11, 2010, as the deputy director for the department of behavioral health, and was appointed interim director on August 17, 2010. Following his appointment as the interim director, plaintiff became concerned about a pay disparity between "wraparound" therapists and in-house therapists because he believed the pay disparity violated state and federal equal pay laws. The "wraparound" therapists, who were all women, were paid 25 percent more than the in-house therapists, who were both men and women, despite the fact that the two types of therapists did the same level of work, billed the same rate to Medi-Cal, and required the same education and credentials. Plaintiff proposed to the personnel department and the board of supervisors (the board) that the in-house therapists' salaries be increased to match the "wraparound" therapists' salaries. The board rejected this solution and instead reclassified the "wraparound" therapists as in-house therapists and allowed them to keep their higher salaries. Plaintiff told the board he did not believe this solution solved the pay disparity problem and on December 16, 2011, plaintiff delivered a letter to all of the members of the board outlining his concerns.
In the letter, plaintiff informed the board that "[u]nder equal pay for equal work regulations, the employees who are paid less have grounds for a class action lawsuit." He further stated his efforts to correct the problem had been ignored and the personnel department was in error to think that this issue did not need to be resolved. Also in the letter, plaintiff asserted that, "[d]espite all the positive changes" he made, he had "been the victim of retaliation from several county employees for attempting to bring clinical appropriateness, ethics, professionalism, and legality to a department which has traditionally been in violation of most mental health requirements as well as [s]tate and [f]ederal [l]aws."
In January 2012, plaintiff learned that the board planned to hire a permanent director for the behavioral health department. In March 2012, the county started accepting applications and plaintiff applied for the job on April 11, 2012. He was interviewed first on August 2, 2012, and again on August 21, 2012. The personnel director was on the panel of plaintiff's second interview, which concerned him because she was the subject of an earlier bullying complaint he had made. On August 28, 2012, plaintiff was told he did not get the permanent director position. Two members of plaintiff's first interview panel indicated to him their surprise at his nonselection as director and informed him they thought he was the best candidate for the job.
Plaintiff's complaint states he was interviewed for the second time on August 21, 2013. This appears to be a typographical error. Plaintiff was informed that he was not selected as director on August 28, 2012, making it clear that he was interviewed in 2012 and not 2013.
Between January 2012 and August 2012, plaintiff had continued to perform his duties as interim director and voiced concern about the pay disparity issue he had previously identified to the board.
On October 5, 2012, plaintiff filed a formal grievance with the board through his union. The grievance alleged plaintiff experienced retaliation from the personnel director after an investigation sustained plaintiff's accusations of bullying against her. The letter cited an e-mail plaintiff sent to two board members on September 12, 2012, as proof that he attempted to inform the board of the retaliation. Plaintiff asserted in his grievance that the personnel director was rude and exhibited negative conduct toward him during his interview for the director position. He further alleged the personnel director had authority within the county and exercised it to deny him the director position as retaliation for his past complaint against her. As evidence of retaliation, plaintiff cited to the personnel director's delay in hiring a medical billing clerk for his department, despite available funding and his requests for one. The grievance also indicated that plaintiff had recently filed a complaint with the labor commissioner regarding the county's violation of the Equal Pay Act. Because of this complaint, the letter stated, plaintiff "is afforded whistleblower protection and has suffered retaliation."
On October 25, 2012, plaintiff filed an administrative complaint with the Department of Fair Employment and Housing alleging he was "[d]enied a work environment free of discrimination and/or retaliation, [d]enied [a] promotion, [and] [f]orced to quit." After detailing adverse health consequences he experienced because of his job, plaintiff alleged as follows: "The [d]irector position for [h]ealth and [h]uman [s]ervices was advertised and filled at the same time as I interviewed for the [b]ehavioral [h]ealth position. The applicant for that position . . . had been the interim director for that department as long as I had for [b]ehavioral [h]ealth. [That applicant] was selected. [She] is substantially younger than I. Do I believe there was age discrimination involved in the decision, I do. The [b]oard has denied me any administrative redress and has not responded to my grievence [sic] sent to them on October 5, 2012 even though [c]ounty [p]olicy clearly states a 14 day response time. The failure of the [b]oard to address the basic question of retaliation remains as well as the continued retaliation by [the personnel director] which they have chosen to ignore. I am left to exist in an extremely hostile environment or leave. Do I believe I am being forced to leave[?] [A]bsolutely."
Also on October 25, 2012, plaintiff resigned. In his resignation letter, plaintiff said he was resigning because he was not hired as the permanent director despite being identified as the most qualified candidate by the independent selection panel and having already performed "superior[ly]." He accused the board and the personnel director and her department of lying to him about the director position having been filled by another candidate. Plaintiff also alleged that "[t]he [board] and [p]ersonnel [department] have ignored the increasing potential for an extremely violent incident related to the bullying, harassment and intimidation that are part of the action of the [board] and [p]ersonnel [department]." Plaintiff closed his letter as follows: "I choose to leave because I can. I do not want to watch the tragic event which will occur due to a system which hides discrimination, harassment, hostile work environment and encourages and supports bullying, harassment and intimidation by the [p]ersonnel [d]irector and her [d]epartment."
On April 18, 2013, the department informed plaintiff it would close his case because there was no basis to proceed unless he submitted additional information. The letter acknowledged plaintiff alleged he reported illegal activity and unfair practices along with bullying to the county, but neither of these complaints constituted protected activities. The department also found plaintiff was not the victim of age discrimination.
In his civil complaint, plaintiff alleged four causes of action against the county. He alleged he was retaliated against in violation of whistleblower protection laws (Lab. Code, § 1102.5, subd (b)) and in violation of the Fair Employment and Housing Act (the Act) (Gov. Code, § 12940, et seq.) after he disclosed discriminatory pay practices to the county. He also alleged the county failed to prevent the retaliation in violation of the Act and that he was the victim of age discrimination.
The county demurred to plaintiff's whistleblower claim because he did not present the county with a government claim as required before bringing suit. The county also demurred to this claim because plaintiff failed to file it within the one-year limitations period. Finally, the county demurred to plaintiff's age discrimination claim because he did not allege sufficient facts to demonstrate he was discriminated against because of his age.
The trial court sustained the demurrer to the whistleblower claim finding plaintiff did not "present the [c]ounty with a timely government claim, under the . . . Claims Act . . . [and] [h]is various communications with the [c]ounty do not amount to substantial compliance." The trial court further sustained the demurrer to the age discrimination claim finding plaintiff did not allege sufficient facts to state a claim.
The county later brought a motion for summary judgment on plaintiff's remaining causes of action for retaliation and failure to prevent retaliation under the Act on the ground he failed to exhaust his administrative remedies with the department. The county further moved for summary judgment on the ground plaintiff did not engage in a protected activity. Finally, the county moved for summary judgment on plaintiff's claim of failure to prevent retaliation because plaintiff could not recover on his underlying claim of retaliation.
The court found there were triable issues of fact regarding whether plaintiff actually engaged in a protected activity but granted the county's motion on the ground the plaintiff did not properly exhaust his administrative remedies with the department before bringing suit.
On appeal, plaintiff challenges the judgment only as to his whistleblower claim and his retaliation claims under the Act. He does not challenge the judgment on his age discrimination claim.
DISCUSSION
I
Plaintiff Did Not Exhaust His Administrative
Remedies Before Filing A Civil Complaint
Plaintiff contends his retaliation claim pursuant to the Act should have survived the county's motion for summary judgment because, contrary to the trial court's ruling, he exhausted his administrative remedies. Specifically, plaintiff argues because there is no requirement he specify the protected activity that led to the retaliation against him, his inclusion of the terms "retaliation" and "protected activity" in his administrative complaint were sufficient for exhaustion purposes. Plaintiff reasons an investigation of these general allegations would have reasonably led to the discovery of the pay discrimination issue he alleged in his civil suit. We disagree.
"A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. [Citation.] Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action." (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1216-1217.)
"We review the grant of summary judgment de novo. [Citation.] We make 'an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.' " (Moser v. Ratinoff, supra, 105 Cal.App.4th at p. 1216.)
"The trial court's stated reasons for granting summary relief are not binding on the reviewing court, which reviews the trial court's ruling, not its rationale." (Lidow v. Superior Court (2012) 206 Cal.App.4th 351, 356.) We may affirm on any legally correct ground, "regardless of the grounds relied upon by the trial court." (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.)
Government Code section 12960, subdivision (d) provides that an employee bringing a claim under the Act must exhaust his or her administrative remedies by filing an administrative complaint with the department within one year after the alleged unlawful action occurred. (See Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1412; Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613 (Okoli).) "To exhaust his or her administrative remedies as to a particular act made unlawful by the [Act], the claimant must specify that act in the administrative complaint, even if the [administrative] complaint does specify other cognizable wrongful acts." (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.) "[I]n the context of the [Act] . . . '[t]he failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect,' and thus that failure to exhaust administrative remedies is a ground for a defense to summary judgment." (Ibid.)
The scope of the charge defines the permissible scope of the subsequent civil complaint. (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1121-1123.) The charge consists of a verified complaint with the department, in writing, that states the particulars of the alleged unlawful practice and includes the names and addresses of the persons alleged to have committed the complained-of unlawful practice. (Gov. Code, § 12960, subds. (b) & (d).) The " 'crucial element' " is the factual statement included in the charge filed with the department. (Sandhu v. Lockheed Missiles & Space Co. (1994) 26 Cal.App.4th 846, 858 (Sandhu).)
The Act, however, requires that its procedural requirements "be construed liberally for the accomplishment of [its statutory] purposes." (Gov. Code, § 12993, subd. (a).) As a result, California courts, as well as numerous federal courts, have endorsed the "like or reasonably related" standard for exhaustion of administrative remedies. (See, e.g., Okoli, supra, 36 Cal.App.4th at p. 1614; Sandhu, supra, 26 Cal.App.4th at pp. 858-859; Oubichon v. North American Rockwell Corporation (9th Cir. 1973) 482 F.2d 569, 571.) Under this standard, the allegations in a civil action are within the scope of the administrative charges if the civil allegations fall within the scope of the administrative investigation that could reasonably be expected to grow out of the original charges. (Sandhu, at pp. 858-859.) Thus, where an administrative investigation would likely have encompassed the claim alleged in the civil complaint, there is no exhaustion of remedies bar. (See Okoli, at p. 1616; Baker v. Children's Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1065.)
The resolution of this issue turns on a comparison of the language of the charge filed with the department and the allegations of the civil complaint. " '[W]hen the difference between the charge and the [civil] complaint is a matter of adding an entirely new basis for the alleged discrimination,' " or in this case retaliation, the court has no jurisdiction to consider the newly alleged claim. (Okoli, supra, 36 Cal.App.4th at p. 1615.)
Plaintiff argues his general allegation in the administrative complaint that he was the victim of retaliation because he engaged in a protected activity was sufficient to exhaust his administrative remedies. This argument lacks merit. Plaintiff cites Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635 (Rope), superseded by statute on other grounds, and Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 (Nazir), for the proposition that he need not specify the protected activity he engaged in that led to the retaliation against him. Contrary to plaintiff's assertion, however, these cases do not allow him to generally allege retaliation based on a protected activity to exhaust his administrative remedies.
In Rope, the appellate court found the plaintiff exhausted his administrative remedies when he filed a civil suit alleging discrimination on the basis of actual or perceived disability and his administrative complaint alleged he " 'was discriminated against . . . on account of his association with his sister, who suffered from the [physical disability of kidney failure],' " and that he was wrongfully fired " 'in retaliation for requesting [medical] leave to donate an organ to his sister.' " (Rope, supra, 220 Cal.App.4th at pp. 654-655.) The court reasoned that the factual basis contained in the plaintiff's administrative complaint was the factual basis of his civil claim under the Act, and thus was " 'like or reasonably related' to his other charges" and put the defendant on notice of his claim under the Act. (Rope, at p. 655) Thus, it did not matter that the plaintiff did not specifically claim discrimination based on an actual or perceived disability because he alleged the facts that constituted that claim. (Ibid.)
In Nazir, the court found the plaintiff exhausted his administrative remedies because the department's administrative investigation revealed facts absent from the administrative complaint that supported the plaintiff's harassment claim. (Nazir, supra, 178 Cal.App.4th at pp. 268-269.) "In particular, before filing his administrative complaint, the plaintiff submitted two questionnaires to [the department] making numerous references to workplace harassment. [Citation.] Moreover, after filing his administrative complaint, the plaintiff sent the [department] investigator an eight-page letter detailing the harassment. [Citation.] Because these documents describing the harassment came to [the department's] attention during its administrative investigation, the Nazir court reversed the trial court's ruling, explaining 'what is submitted to the [department] must not only be construed liberally in favor of plaintiff, it must be construed in light of what might be uncovered by a reasonable investigation.' " (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 155.)
Both of these cases stand for the proposition that a plaintiff must allege or supply the facts constituting the basis for his claim under the Act in his administrative complaint or during the administrative investigation. General allegations, which do not specify alleged wrong-doing or serve to put an employer on notice of the nature of the charge, are not sufficient. Thus, the general allegation of retaliation based on a protected activity plaintiff included in his administrative complaint did not exhaust his administrative remedies.
Plaintiff also argues that his allegation of retaliation and his reference to the grievance he filed with the board on October 5, which notified the board he filed a grievance with the labor commissioner alleging the county violated the Equal Pay Act, was sufficient to exhaust his administrative remedies. Plaintiff reasons that "it is hard to see how [his civil] claims retaliation for reporting of sex discrimination could not " 'reasonably be expected to grow out of' " these allegations. Plaintiff's argument, however, encounters two problems.
First, although plaintiff alleged retaliation in the administrative complaint, these claims of retaliation did not include or mention his reporting of gender discrimination. Plaintiff alleged he was retaliated and discriminated against because of his age and his engagement in a "[p]rotected [a]ctivity," but did not allege any other protected activity besides his age. In the factual statement portion of the charge, plaintiff described how he was passed over for a promotion while someone younger than him was given the same type of promotion in another department. He accused the board of failing "to address the basic question of retaliation . . . as well as the continued retaliation by" the personnel director. The scope of plaintiff's charge of discrimination and retaliation was the board and personnel director's failure to give him a promotion because of his age. A reasonable investigation into the allegation that he was not promoted because of his age would not have led to the new basis he alleged in his civil complaint -- retaliation because he reported a pay disparity based on gender within the behavioral health department.
Second, the grievance plaintiff filed with the board, wherein he stated that he filed a complaint with the labor commissioner alleging the county violated the Equal Pay Act, was not part of the charge he filed with the department. (See Gov. Code, § 12960, subds. (b) & (d).) Although he referenced the grievance in his administrative complaint, he did not incorporate its facts or allege that he was retaliated against because of the facts he articulated in the grievance. Even if we assume the grievance gave the department some sort of notice that plaintiff reported an equal pay violation by the county, plaintiff never alleged in his grievance that he was denied a promotion or retaliated against because he reported this violation. Plaintiff's allegation of retaliation and discrimination in his grievance was limited to the personnel director's retaliation against him because he had previously reported her for bullying. A reasonable investigation into this charge would not have uncovered plaintiff's allegation that he was retaliated against because he reported gender discrimination. For these reasons, plaintiff cannot rely on his reference to his October 5 grievance as a basis for exhausting his administrative remedies.
Neither does the letter sent to plaintiff from the department telling him his case would be closed show plaintiff's allegation of gender discrimination was uncovered through the department's investigation. In the letter, the department indicated that it was aware plaintiff reported illegal activity and unfair practices to the county; however, the type of illegal activity and unfair practices he reported were not specified. Further, plaintiff provided no additional evidence to the department after receiving this letter to make them aware of the facts constituting his retaliation claim for reporting gender discrimination. The department's letter does not indicate it became aware of the facts constituting plaintiff's civil allegation of retaliation based on reported gender discrimination during the course of its investigation and thus, plaintiff's case is not like that found in Nazir.
Accordingly, plaintiff's causes of action for retaliation and failure to prevent retaliation under the Act were properly dismissed because he failed to exhaust his administrative remedies.
II
Plaintiff Did Not Substantially Comply With
The Claims Act Before Filing Suit
The trial court sustained the county's demurrer to plaintiff's whistleblower claim on the ground that plaintiff did not "present the [c]ounty with a timely government claim, under the . . . Claims Act, and . . . [h]is various communications with the [c]ounty do not amount to substantial compliance under the [Claims] Act." Plaintiff contends he in fact timely and substantially complied with the Claims Act by presenting the board with his claim twice -- once in the grievance he filed with the board on October 5 and again in his resignation letter on October 25. We disagree and conclude plaintiff's communications with the board did not constitute substantial compliance with the Claims Act. Thus, we need not decide whether the communications were timely.
"Before suing a public entity, the plaintiff must present a timely written claim for damages to the entity. (Gov. Code, § 911.2.)" (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208.) Compliance with this requirement is not merely a procedural step, but is considered to be a condition precedent to maintaining the action, and is therefore an element for pleading the specific cause of action. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1240 (Bodde).) When a plaintiff has failed to allege facts that demonstrate compliance with the claims presentation requirement, or alternatively excuse for compliance, his or her pleading against a public entity becomes subject to a demurrer for failure to state a cause of action. (Id. at p. 1239.)
"When a trial court sustains a demurrer on the ground that the complaint 'does not state facts sufficient to constitute a cause of action' [citation], the appellate court conducts a de novo review -- that is, it independently decides whether the allegations are sufficient." (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235.) We treat a demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed. We seek to give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)
Government Code section 910 identifies the essential elements to be included in a claim under the Claims Act: "A claim shall be presented by the claimant or by a person acting on his or her behalf and shall show all of the following: [¶] (a) The name and post office address of the claimant. [¶] (b) The post office address to which the person presenting the claim desires notices to be sent. [¶] (c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted. [¶] (d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim. [¶] (e) The name or names of the public employee or employees causing the injury, damage, or loss, if known. [¶] (f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case."
"Where a claimant has attempted to comply with the claim requirements but the claim is deficient in some way, the doctrine of substantial compliance may validate the claim 'if it substantially complies with all of the statutory requirements . . . even though it is technically deficient in one or more particulars.' [Citation.] 'The doctrine is based on the premise that substantial compliance fulfills the purpose of the claims statutes, namely, to give the public entity timely notice of the nature of the claim so that it may investigate and settle those having merit without litigation.' " (Connelly v. County of Fresno (2006) 146 Cal.App.4th 29, 38, quoting Santee v. Santa Clara County Office of Education (1990) 220 Cal.App.3d 702, 713.) However, this doctrine "cannot cure the total omission of an essential element from the claim or remedy a plaintiff's failure to comply meaningfully with the statute." (Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27, 37; Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d, 1071, 1083.)
Plaintiff cannot show his grievance letter or his resignation letter substantially complied with the Claims Act. His grievance and resignation letters omitted his address and the address where he desired notice to be sent, along with the amount he sought in damages and whether his claim constituted a limited civil case. (Gov. Code, § 910, subds. (a), (b), (f).) Further, plaintiff did not include "[t]he date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted" in his whistleblower cause of action. (Gov. Code, § 910, subd. (c).) "[A] complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim." (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447.) It is permissible to plead additional theories in a civil complaint where the "additional theories [a]re based on the same factual foundation as those in the claim, and the claim provide[s] sufficient information to allow the public agency to conduct an investigation into the merits of the claim." (Dixon v. City of Livermore (2005) 127 Cal.App.4th 32, 42.) In neither plaintiff's grievance letter nor his resignation letter did he allege that he was denied the promotion to director because he had previously reported a pay disparity based on gender. In his resignation letter, plaintiff stated he was the victim of ongoing retaliation and bullying on the part of the board and the personnel department, but never stated when it occurred or specified any factual basis supporting his claims so the county could launch an adequate investigation. In his grievance letter, plaintiff stated that he was the victim of ongoing retaliation and bullying on the part of the personnel director and her department and was denied a promotion because of her actions. He also stated that he complained to the labor commissioner about violations of the Equal Pay Act, but never alleged that he was retaliated against because of that complaint. Under these facts, we cannot say the county was given adequate notice of the nature of plaintiff's whistleblower claim of retaliation based on reported gender discrimination so that it could investigate and settle that claim without litigation. (See Connelly v. County of Fresno, supra, 146 Cal.App.4th at p. 38.)
Further, and more fundamentally, these letters do not constitute a "claim" within the meaning of the Claims Act. "[T]o be sufficient to constitute a trigger-claim under [Government Code] section 910.8, the content of the correspondence to the recipient entity must at least be of such nature as to make it readily discernible by the entity that the intended purpose thereof is to convey the assertion of a compensable claim against the entity which, if not otherwise satisfied, will result in litigation." (Green v. State Center Community College Dist. (1995) 34 Cal.App.4th 1348, 1358.) For example, in Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, an attorney's letter stated, " 'This letter will serve to advise you that this office intends to commence an action against Desert Hospital' " and stated the date of the alleged medical negligence. (Id. at p. 703.) The court held this letter was a claim as presented because it disclosed the plaintiffs had a claim which, if not satisfactorily resolved, would result in their filing a lawsuit. (Id. at p. 710.) In contrast, in Green, the letter referred to an accident involving the plaintiff, recited the attorney had been retained to represent the plaintiff, and directed the defendant to send all further correspondence relating to the matter to the attorney. (Green, at p. 1351.) The appellate court in Green held this did not constitute a claim as presented because "there is nothing in counsel's . . . letter to the [defendant] remotely implying that a demand was being made . . . or that counsel would initiate litigation if [the plaintiff's] demand was not satisfied." (Id. at p. 1359.)
Here, neither plaintiff's grievance letter nor his resignation letter was a claim as presented because they did not put the board on notice of plaintiff's assertion of a compensable claim for retaliation and that he intended to pursue the matter by litigation if necessary. As shown, plaintiff did not include the factual basis of his whistleblower claim in either his grievance letter or his letter of resignation. He further did not state in either the grievance letter or the letter of resignation that he would file a lawsuit if his claim of retaliation were not satisfactorily resolved. Accordingly, plaintiff's letters do not constitute a claim within the meaning of the Claims Act and the trial court properly sustained the county's demurrer on the issue.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Duarte, J.