Tami Piscotty vs. City of Westminster

Opposition

Cal. Super. - 4th Dist.June 23, 2017

© © 00 N N O O OO DMA O W N A N N N N N D N D ND N N ND N N A a e d m d a a a a a v a a A © N N O O a A W O N 2 O O © O N O O O D h A O N ao Jacob P. Menicucci, Esq. (SBN: 305237) Dennis E. Wagner, Esq. (SBN: 99190) WAGNER & PELAYES, LLP 1325 Spruce Street, Suite 200 Riverside, CA 92507 Tel: (951) 686-4800 Fax: (951) 686-4801 Attorneys for Plaintiff, TAMI PISCOTTY ELECTRONICALLY FILED Superior Court of California, County of Orange 1272272017 at 10:12:00 Awl Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE TAMI PISCOTTY, Plaintiff, VS. CITY OF WESTMINSTER; and DOES 1 through 25, inclusive, Defendants. ) CASE NO: 30-2017-00928086-CU-OE-CJC PLAINTIFF’S OPPOSITION TO ) DEFENDANT CITY OF ) WESTMINSTER’S DEMURRER TO PLAINTIFF’S FIRST AMENDED y COMPLAINT ) ) DATE: January 8,2018 ) TIME: 10:30 am. ) DEPT.: C26 ) Honorable Gregory H. Lewis Complaint Filed: June 23, 2017 Trial Date: None N r ’ Ne er ” M e r ” N e e N a e N e a ’ COMES NOW, plaintiff, TAMI PISCOTTY, and hereby opposes Defendant City of Westminster's Demurrer to her First Amended Complaint, as follows: 11 PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT © © 00 N N O O OO Mh W N N N ND N N ND ND N N N D A aA aA a a y e s e s a A 0 N N O O ga HA W N 2 O O © O N O bh O W N A TABLE OF CONTENTS Lo INERODIIC THOM suse ssumss6.26.550mmsmsmsnssmnsmsssmssmos s s sss omy 258358 45.0810 8 35 0g Me 1 II. STANDARD FOR DEMURRERS ......c.ooiiiitiiiiiiioeet eee eee eee ee , 1 IIL ARGUMENT ......ooiiiiiiiniiteteee eset eters eves eter eases eset eres eens ese reneea, 2 A. First Cause of Action — Labor Code § 1102.5......cuomiiieeeeceeeeeeeeeeeeeeeeeeeeeee eens 2 1. Protected ACLIVILY .oueveueeieieieteteeiciiet e e ee ee nnns 3 De I OR cs scones 525.2508 eos eee AOE GE TE 5 3. Plaintiff was not Required to Exhaust Administrative Remedies.............covevenn....... 10 B. Plaintiff’s Claims for Race and Age Discrimination Properly State a Claim for Relief and are Sufficiently Certain.............cocooovovoieveieieiieeeceeeeeeeeeeeeeee , 11 C. Plaintiffs Claim for Failure to Investigate and Prevent Discrimination Sufficiently States a Claim for Relief ...........c.oooiiiiiieiiieeeeeeeee eee, 13 D. If Any of Defendant’s Objections are Sustained, Leave to Amend Should IE HCTIEIOIEN, coco mms 0 em msm sms Ae RRS SRE 14 IV. CONCLUSION.......cotiimtiritititnieeeee sees ese eet eset ser sere eree see e eeses 14 ii PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT © © 00 N N O O Oa Hh Ww O N N O N D ND ND ND ND N D P ND A a m d o n a aa d 0 s o a a A XX N N O O Oa A W N A O © O N O ; DNA W N Aa TABLE OF AUTHORITIES Cases: Bass v. Board of County Com ’rs, Orange County, Fla. (11th Cir. 2001) 256 F.3d 1095, 1118 weit eae 10 Birschtein v. New United Motor Mfg., Inc. (2001) 92 Cal. APP.4th 994, T1006 .....c.ecuiieiieeieeee eee ee e ns 7,12 Bondi v. Jewels by Edward, Limited (1968) 267 Cal. APDP.2d 672, 676 .....ccovviriieiecreererrerinresensessesrereeesseesesesssesesessssssssessssssssessesseseens 2 Cambell v. Regents of University of California (2005) 35 Calidth 311 crite eestor eee ae arene 11 City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal. APD.Ath 445, 459 cco eee eee eee 1 Colores v. Board of Trustees (2003) 105 Cal. App.4th 1293, 1305, 1309, 1310 .ieuiieeieieeeeeeeeeeeeeeeee e e e 9 Edgerly v. City of Oakland (2012) 211 Cal. APP-Ath 1191 coo eee 2 First Nationwide Savings v. Perry (1992) 11 Cal.APD.A4th 1657, 1662 ....c.oveeiieiieieieieeeieee ects 1 Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. APP.3d 590, 614 eee ee eevee 3 Green v. Ralee Engineering Co. (1998) 19 Cal.dth 66, 70-77 .....ooueirieeeeeeeeeeeee eee e e 2 Lloyd v. County of Los Angeles (2009) 172 Cal. APD.4th 320, 332 weitere 10 McMahon v. Republic Van & Storage Co., Inc. (19635) 59 Cal 2d BT; BT commmmmmummmsmas spon saism.m555505055 555 Som snmsommmmamosnamsamssmssmsassessssssssenammonce 1 Messler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296 .....oviuiiiiieeeee eee 14 Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007 «ecient eee eee 1,2 Morgan v. Regents of University of California (2000) 88 Cal. APP.Ath 52, 64 ceo 12 iii PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT © © 00 N N O O OO Hh W O N a N N N D D D N D N N N N D ND 4 ma a a m a a v o w s e s a A 0 NN OO Og A W O N aA O O © oOo N O bh W N a Mullins v. Rockwell Internat. Corp. (1997) 15 Cal.dth 731, TAL coo eee eee eee eee eee eee e eee eases eee seers ees 7,13 Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal. App.4th 1021, 1035 o.oo eee eee eee eee eee eee erasers eee 13 Patten v. Grant Joint Union High School Dist. (2005) 134 Cal. App.4th 1378, 1384 wooo eee eee eee eee eee eee eee eens 2,9, 13 Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 802, 812, 813, 817, 819, 821, 823,824 ...ocvveveeeeeenn. 2,6,7,12,13 Romano v. Rockwell Internat. Inc. (1996) 14 Cal.dth 479 coo eee eee eee eee eee eee eee eee eres sees eee seen 6,7,13 Satyadi v. W. Contra Costa Healthcare Dist. (2014) 232 Cal. APP.Ath 1022, 1027 cere eee eee eee eee eee eee eee eee sees sees eens 10, 11 Wideman v. Wal-Mart Stores, Inc. (11th Cir. 1998) 141 F.3d 1453, 1456 meee eee eee eee eee eee eee eee eee eee ees 10 Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1140, 1142, 1054, 1055, 1056 .eeeemeeeeeeeeeeeeeeee eee een, 6,9, 10 Statutes: Code Civ.Proc. § 473, Subd. (@)(1) evevveeieierieriieiereeteeteee e e eens 14 Code CIV.PTOC. § 576 neice eee eee eee eee eee eee eee eee eens 14 Elections Code § 18205 .....uiiieieieieeteteeeeeeetteete ete ee ee ee eeeeeees e sees a eeaas 4 GOV. COA § T0000... eee eee eee eee eee eee eee eee eee eee eee eee eee 3,4,5 Gov. Code § 12940, SUDA. (N)(1) weuveriiririeiriet eit eee eee eens eeene 14 Gov. Code § 12993, SUDA. (8) cveveueierieeieieeecteeeeeeee eee ee ee e e ee eee eee ee eee as esses 2 Lab. Code § 1102.5... eee eee eee eee eee eee eee eee eee eee eee eee 1,2,3,5,9,10, 11 Lab. Code § 1102.5, SUDA. (D).uviiuiiiriiiiiie cisco eee eee eee eee eee eae eens 5 Lab. Code § 1102.5, SUDA. (C) ..eriiiiiieieieeeieiie eee e eee seers e area erase eee e eases 5 Lab. COE § 08.7 oestrone 10, 11 Lab. Code § 98.7, SUDA. (Q) ...ueiiuiiuiiirieere ieee eee eee eee eee eee eee eee eee eee eer 11 iv PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT © © © N N O O Og h~A W O N A N N N D ND ND N D ND N N N A a4 a a a a a a a A © N N O O a A W O N a2 O O © O N O O N O N A I. INTRODUCTION Defendant files the instant demurrer to Plaintiffs First Amended Complaint for her employment claims for retaliation, discrimination, and failure to prevent discrimination and harassment. Defendant’s moving papers largely misapplies various employment doctrines of law by either strictly construing the continuing violation doctrine and adverse action requirement and by imposing an administrative requirement to Plaintiffs Labor Code § 1102.5 claim that has never existed. Defendant has failed to meet its burden to show that a defect on the complaint bars Plaintiff’s claim from going forward. Instead, Defendant’s demurrer largely seeks the court to make factual determinations to block Plaintiff from her day in court. For these reasons, Plaintiff submits her opposition to Defendant’s demurrer and respectfully requests that the demurrer be overruled in its entirety. II. STANDARD FOR DEMURRERS A “demurrer tests the pleading alone, and not the evidence or the facts alleged. Thus, a demurrer will be sustained only where the pleading is defective on its face.” City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal. App.4th 445, 459. The court, when considering a demurrer to a complaint, treats the demurrer as admitting all material facts properly pleaded and considers all matters which may be judicially noticed. First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1662. The statute of limitations defense may be asserted by general demurrer only if the complaint shows on its face that the statute bars the action. Mitchell v. California Department of] Public Health (2016) 1 Cal.App.5th 1000, 1007 (quoting 1 Schwing, Cal. Affirmative Defenses (2007) Statute of Limitations §25:78, p. 1609, fns. omitted). “In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.” McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874 (emphasis added). For a demurrer asserting the statute of limitations as a defense, “[t]he ultimate question 1 PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT © © 00 N N O O bh W N A N R N D N N N N N N 2 a a a a a 4a a a a © N N oO a A W N 2 O O © © N O O O BB ® N Oo for review is whether the complaint showed on its face that the action was barred by a statute of limitations, for only then may a general demurrer be sustained and a judgment of dismissal be entered thereon.” Mitchell, supra, 1 Cal. App.45th at 1007. Claims under the FEHA are especially difficult to defeat because the provisions of the FEHA are “constructed liberally for the accomplishment of the purposes thereof.” Cal. Gov. Code § 12993(a). “This liberal construction extends to interpretations of the FEHA’s statute of limitations: ‘In order to carry out the purpose of the FEHA to safeguard the employee’s right to hold employment without experiencing discrimination, the limitations period set out in the FEHA should be interpreted so as to promote the resolution of potentially meritorious claims on the merits.” [Citation.]” Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 819. Allegations that raise a question of fact are not proper questions for the court to determine upon demurrer. Bondi v. Jewels by Edward, Limited (1968) 267 Cal. App.2d 672, 676. Here, Defendants have failed to meet their burden to Justify sustaining of their demurrer. III. ARGUMENT A. First Cause of Action — Labor Code § 1102.5 Labor Code § 1102.5 is California’s “Whistleblower” Protection Act for employees. Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 76-77. The whistleblower protection statute serves to protect whistleblowers who report unlawful acts at the workplace. Edgerly v. City of Oakland (2012) 211 Cal.App.4th 1191. The legal standard for a Labor Code section 1102.5 claim for retaliation requires (1) the plaintiff establish a prima facie case of retaliation; (2) the defendant provide a legitimate, non-retaliatory explanation for its acts, and if defendant provides such an explanation; (3) the plaintiff must show the explanation is merely a pretext for the retaliation. Patten v. Grant Joint Union High School Dist. (2005) 134 Cal. App.4th 1378, 1384. “To establish a prima facie case for retaliation, a plaintiff must show that she engaged in a protected activity, she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two.” Fisher v. San Pedro Peninsula Hospital (1 989) /1/ 2 PLAINTIFF’S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT © © 00 N N OO o r A W O N Aa N N N D ND ND N D N N N ND A a a a av e a aa a o a o a 0 N N OO O O bh W N A O © O N O O D N W N A 214 Cal.App.3d 590, 614. Defendant challenges whether Plaintiff's First Amended Complaint states a prima facie case for retaliation under Labor Code §1102.5 1. Protected Activity Defendant demurrers to Plaintiff’s First Amended Complaint stating the protected activity is “uncertain” and fails to state a claim for relief. However, the many instances of Plaintiff engaging in protected activity covered under Labor Code § 1102.5 is thoroughly detailed in her First Amended Complaint. An employee engages in protected activity under Labor Code section 1102.5 when she discloses information to a person with authority over the employee, or to a government or law enforcement agency if the employee has reasonable cause to believe that the information discloses a violation of state or federal law or regulation. Protected activity also occurs if the employee refuses “to participate in an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” Labor Code § 1102.5. Here, Plaintiff’s protected activity is unambiguously alleged in her First Amended Complaint. The protected activity began in 2009 and continued through 2016. In 2009, Plaintiff disclosed to various officials within the City of Westminster that an impending transaction could be a violation of Government Code § 1090. (First Amended Complaint (“FAC”) § 30). After Plaintiff reported the potential violation of Government Code § 1090, City Manager Don Lamm said Plaintiff should be fired for interfering or protesting. (FAC 931). Also in retaliation for Plaintiff reporting the 1090 violation, Doug Mclsaac suggested to Lamm and Silver that Plaintiff’s probation be extended. (FAC § 32). Plaintiff's status as a whistleblower continued past 2009 when in 2010 Plaintiff uncovered embezzlement in the Grants and Housing Division. (FAC § 33). Plaintiff reported the embezzlement to Captain Mitch Waller, and ultimately the involved employee was terminated and Plaintiff given all of that employee’s job duties. However, Defendant refused to reclassify Plaintiff, causing her to remain compensated as Housing Coordinator despite the extra work. (FAC § 34). This failure to reclassify continues to present day. 3 PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Oo © oOo ~N O O Og A O W O N A N N N D N N N ND ND ND A a a a a a 4a a a a 0 N N O O Oa bh~A W N A O O O O N O O D N , W N A Plaintiff’s protected activity continued when on June 1, 2016, Plaintiff had a meeting with city officials where she related to them that she was fearful that the City Council would see Plaintiff’s name and position as expendable considering Plaintiffs whistleblowing of illegal conduct. During this meeting, Plaintiff expressed her concerns about more illegal actions of the City of Westminster’s management. (FAC 52). Presently, Plaintiff is treated as an albatross for bringing many of Defendant’s illegal actions forward by management personnel including council members and the city manager. This treatment has persisted even since Plaintiff reported] the illegal activity within the City of Westminster and complained of discrimination. (FAC 58). Recently, Plaintiff reported what she reasonably believed to be a violation of Elections Code § 18205 after she learned that two councilmembers met with another councilmember to dissuade that person from running for elected office in November 2016, in the presence of another city employee at a restaurant in Huntington Beach, which is a crime under election and penal code provisions. Plaintiff has been interviewed by two government intelligence agencies because of this report and numerous city employees are aware of Plaintiff reporting this illegal activity. (FAC 759). Without any legal authority, Defendant contends Plaintiff is required to specifically identify the person(s) she made each complaint to. However, no such requirement exists. Instead, Plaintiff is required to plead that she reported reasonably believed illegal or noncompliant activities to a person with authority over her or to a law enforcement or government agency. Plaintiff reported to multiple city officials the potential Government Code § 1090 violation, reported embezzlement to Captain Mitch Waller, reported whistleblower retaliation to city officials, and also reported a violation of Elections Code § 18205 to two government intelligence agencies. By pleading these facts, Plaintiff has sufficiently plead she engaged in protected activity. // /1/ 4 PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT — _ © © OO N N O O Oo bh o w o N Defendant also argues that because Plaintiff reported conduct that “could be” a violation of Government Code §1090, that the report is somehow not protected activity. However, certainty of a violation of law is not required for a claim under Labor Code § 1102.5. Instead, the employee is only required to show she had “reasonable cause to believe that the information discloses a violation” of law or regulation. Labor Code § 1102.5 (b) and (c). Plaintiff has met her pleading burden to show she reported activity she reasonably believed were violations of law because Plaintiff repeatedly states in her complaint that she reported “illegal actions, reported embezzlement, and even cited specific Government Code sections she reported to be violated by City officials. (FAC 9930-33, 52, 58-59). Lastly, Defendant contends Plaintiff’s report of conduct that violated the City’s Personnel Manual is not a report of illegal activity. However, this argument is premature, as many policies that are contained within the Personnel Manual are also legal rules and regulations. Thus, the fact that Plaintiff reported violations of the City’s Personnel Manual does not in and of itself preclude Plaintiff from asserting that she reported conduct she reasonably believed to be in violation of the law or regulations. 2. Retaliation Next, Defendant argues Plaintiff’s allegations regarding retaliation are uncertain and do not state a claim for relief. Defendant argues the allegations of adverse employment actions fall outside the statute of limitations. However, Plaintiff's complaint clearly alleges facts giving rise to the continuing violation doctrine. Defendant seeks strict application of the statute of limitations for Labor Code section 1102.5 claims, arguing that the court should not consider the full range of retaliation committed against Plaintiff, and only examine the conduct of Defendant within three years preceding the filing of her claim. However, the continuing violation doctrine allows for all Defendant’s retaliatory conduct to be considered. Under the continuing violation doctrine, “an employer is liable for actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct that occurred within the limitations period.” Yanowitz v. L'Oreal 5 PLAINTIFF’S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT — _ © © oO o N N O O Oo Nh o w O N USA4, Inc. (2005) 36 Cal.4th 1028, 1140. Thus, even if the protected activity occurred outside of the three year window, the claim is not necessarily barred so long as the protected activity or adverse actions continued into the limitations period. Defendant asks for a strict interpretation of the statute of limitations, meaning that only actions occurring within three year of filing this claims can be considered for the retaliation claim. However, the statute of limitations in Richards was interpreted with the court stating the “statute of limitations should not be interpreted to force [an aggrieved employee] the unappealing choice of resigning at the first sign of discrimination or, on the other hand, persisting in the reconciliation process and possibly forfeiting a valid claim should that process prove unsuccessful.” Richards, supra, 26 Cal.4th at 821. “Barring application of the continuing violation doctrine in retaliation cases ... would mark a significant departure from the reasoning and underlying policy rationale of our previous cases.” Yanowitz, supra, 36 Cal.4th at1141. The continuing violation doctrine applies “where the plaintiff alleges a retaliatory course of conduct.” Id at 1142. Additionally, Defendant attempts to separately analyze each adverse employment action to argue that they are not sufficient to allege retaliation. However, “a series of separate retaliatory acts collectively may constitute an ‘adverse employment action’ even if some or all of the component acts might not be individually actionable.” Id. at 1141. In fact, the court has stated “if ... we were to foreclose application of the continuing violation doctrine as a matter of law in retaliation cases, the statute of limitations would start running upon the happening of the first act of retaliation, even if that act would not be actionable standing alone. A rule that would force employees to bring actions for ‘discrete acts’ of retaliation that have not yet become ripe for adjudication, and that the employee may not yet recognize as part of a pattern of retaliation, is fundamentally incompatible with the twin policy goals of encouraging informal resolution of disputes and avoiding premature lawsuits that critically informed our analysis in Richards and Romano.” Id. Defendant also argues that because various retaliatory acts were done by different actors, somehow that fact blocks application of the continuing violation doctrine. This argument is 6 PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT — © © 00 N N O O Oo bh o w o N meritless because Plaintiff’s claims are not against any one individual, but rather, the City, which has collectively retaliated against Plaintiff as a result of her whistleblowing. Defendant also argues the continuing violation doctrine cannot apply because the retaliation “achieved permanence.” However, determination of permanence is inherently a question of fact, and thus is an improper question to be determined through demurrer. Birschiein v. New United Motor Mfg., Inc. (2001) 92 Cal.App.4th 994, 1006. Even if the court can make this determination at this stage of the litigation, the Court has expressly held that “degree of permanence” does not mean that the statute of limitations begins to run merely when the employee is on notice that her rights have been violated. Richards, supra, 26 Cal.4th at 824. In fact, when the continued harassment and discrimination does not result in a constructive discharge, “the statute of limitations begins to run not necessarily when the employee first believes that his or her rights may have been violated, but rather, either when the course of conduct is brought to an end, as by the employer’s cessation of such conduct or by the employee’s resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.” Id at 823. Defendant argues that permanence was achieved when Plaintiff was transferred and demoted. However, even though it could be argued that when Plaintiff was transferred and demoted Plaintiff was aware her rights were violated, regardless, the statute of limitations does not run as soon as the employee is on notice that her rights have been violated. Id. at 824. The California Supreme Court in Mullins v. Rockwell Internat. Corp., (1997) 15 Cal.4th 731, 741, declared that “[a]s a practical matter, a rule requiring a lawsuit to be filed as soon as intolerable conditions begin would interfere with informal conciliation in the workplace.” If such a requirement were imposed on employees to protect their rights, “it would in most cases prompt the employee to resign at the earliest date to avoid the awkwardness of maintaining employment while pursuing litigation against his or her employer.” Id. Romano v. Rockwell Internat. Inc. (1996) 14 Cal.4th 479, similarly held that it is contrary to the purpose of the FEHA to encourage premature litigation at the expense of informal conciliation. 11 7 PLAINTIFF’S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT [E N © © 00 N N O O Oo Hh o w o N Also, contrary to Defendant’s arguments, Plaintiff has sufficiently alleged retaliatory events that occurred both within three years of filing suit as well as beyond, thus giving rise to the continuing violation doctrine. Despite being given all the CDBG and HOME Grant duties in 2010 due to another employee being terminated and Plaintiff repeatedly requesting both verbally and in writing a job reclassification from 2012 to 2017 to reflect Plaintiff's accurate job description of Grants and Housing Manager, Plaintiff has never been reclassified or compensated for her additional responsibilities of working two jobs. This refusal to accurately classify Plaintiff has continued for the years Plaintiff has worked for the City of Westminster. (FAC 48). Currently, Plaintiff is once again being phased out of her position, which has materially changed her duties and conditions of employment. Chet Simmons is currently taking over housing tasks to try and eliminate Plaintiff from performing her job and to force her out. This phasing out has continued throughout Plaintiff’s employment and continues presently. This includes meeting secretly with affordable housing developers to undermine Plaintiffs role in managing affordable housing developers to undermine Plaintiffs role in managing affordable housing projects and budgets, and secretly designing then seeking approval to contract-out homeless prevention services which had been provided by the Housing Division to a company at three times the monthly cost of the successful program. (FAC § 50). Also indicating retaliation for Plaintiff’s whistleblowing, in May 2016, Councilmember Margie Rice publicly stated at a Council Meeting that she had submitted a list of budget reductions one of which was to ask why Plaintiff should continue to be employed. This had caused Plaintiff exacerbated fear for her job, as it will bring up all her prior unresolved matters. (FAC § 51). Additionally, after Plaintiff reported illegal actions on June 1, 2016, to Mike Harary and Cyndie Marshall, her work duties have been taken away and various false statements have been made about her work performance. (FAC § 52-53). Presently, Plaintiff is treated as an albatross for bringing many of Defendant’s illegal actions forward. (FAC 58). Defendant argues that the above adverse actions are not sufficient allegations for a retaliation claim. However, “[i]n an attempt to avoid liability [for wrongfully discharging an employee], an employer may refrain from actually firing an employee,” preferring instead to 8 PLAINTIFE’S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT © © 00 N N O O Og A W N a N N N D N N N D N N N N N N N a a4 a a a a d a a a o A 0 N N O O O A W N A O © O N O O D N W N Aa engage in conduct that may lead the plaintiff to quit. Colores v. Board of Trustees (2003) 105 Cal. App.4th 1293, 1305. To determine whether an adverse employment action is sufficient, the court is to look at “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1387. “[T]he terms or conditions of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace.” Id. Here, Plaintiff’s allegations are sufficient to show adverse action in retaliation for her whistleblowing. Similar to Plaintiff in this case, the plaintiff in Colores underwent substantial stress because “she believed that [her supervisor] was out to terminate her since people repeatedly told her so.” Id at 1309. Additionally, just like Plaintiff here, the plaintiff in Colores was described as “distressed, confused about why things were happening, and worried about losing her job.” Id. The plaintiff in Colores felt humiliated because of the “implication that her duties were changed because she was dishonest and/or incompetent.” Id. at 1310. Additionally, Plaintiff alleges she was not given performance evaluations and Defendant refused to classify her title to be in accordance with her duties. These allegations also constitute adverse action because an adverse employment action includes “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career,” and the test “must be interpreted liberally with a reasonable appreciation of the realities of the workplace.” Yanowitz, supra, 36 Cal.4th at 1054. As also explained in Yanowitz , supra at 1055, “there is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.” Enforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of Labor Code section 1102.5. Patten, supra, 134 Cal.App.4th 1378, 1390. In sum, Defendant’s demurrer seeks to have applied a very limited and strict interpretation of adverse action by seeking to impose a requirement that each identified action 9 PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT OO © 00 ~N O O OO bh W O N A N N N D N D N D N D NN N D P 2 a a y 0 a a e d o a a © NN O O Og Bh W O N A O OW O N O O N W N a materially changed the conditions of employment. To the contrary, “there is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.” Yanowitz at 1055. See also Bass v. Board of County Com ’rs, Orange County, Fla. (11th Cir. 2001) 256 F.3d 1095, 1118 (retaliatory actions that did not deprive plaintiff of compensation and may not have individually constituted adverse employment actions were, when viewed collectively, actionable); Wideman v. Wal-Mart Stores, Inc. (11th Cir. 1998) 141 F.3d 1453, 1456 (“It is enough to conclude, as we do, that the actions about which Wideman complains considered collectively are sufficient to constitute prohibited retaliation. We need not and do not decide whether anything less than the totality of the alleged reprisals would be sufficient). In fact, “a series of separate retaliatory acts collectively may constitute an ‘adverse employment action” even if some or all of the component acts might not be individually actionable.” Yanowitz at 1141. “Enforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of the statute.” Yanowitz at 1056. Thus, allegations of retaliation are considered collectively. Id. Accordingly, the adverse actions alleged in Plaintiff’s complaint, when taken as a whole, are sufficient to state a claim for 1102.5 because they materially affect the conditions of Plaintiff's employment. 3. Plaintiff was not Required to Exhaust Administrative Remedies Next, Defendant attempts to enforce an illusory administrative requirement that never existed. Defendant asserts Plaintiff was required to exhaust administrative remedies because certain retaliatory events occurred between 2008 and 2013. However, Labor Code section 1102.5 has never had a requirement, regardless of the year, mandating a plaintiff file an administrative complaint. In Satyadi v. W. Contra Costa Healthcare Dist. (2014) 232 Cal.App.4th 1022, 1027, the Gout was clear in stating “that because the amendments merely clarified existing law, they may be applied to this case without transgressing the general rule against the retroactive application of statutes.” “The only California appellate court to consider whether a party was required to exhaust the § 98.7 remedy before filing suit under section 1102.5 had concluded exhaustion was not required.” Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320, 332. Defendant cites to Cambell v. Regents of University of California (2005) 10 PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT © © 00 N N O O 0 bh O W N N N N D ND N D ND NN D N D N A a a 0 a a a a a a A 0 N N O O O O BA W N a2 O O © O N O O A , W w N A 35 Cal.4th 311 for the proposition that Plaintiff was required to exhaust administrative remedies. However, “[a]lthough many federal courts interpreted Cambell as requiring terminated employees suing under section 1102.5 to avail themselves of the section 98.7 remedy before going to court, in fact Cambell was silent on the matter.” Satyadi v. W. Contra Costa Healthcare Dist. (2014) 232 Cal.App.4th 1022, 1032. “Since cases are ‘not authority for propositions neither considered nor discussed in the opinion’ [citation], Cambell provides no direct support for the view that seeking relief from the Labor Commissioner was a prerequisite to filing a whistleblower action in court.” Id. at 29. “In short, our high court has never interpreted section 98.7 as requiring plaintiffs to exhaust that administrative remedy prior to filing suit for violations of section 1102.5.” Id. The foregoing demonstrates that prior to the Legislature’s amendments to the Labor Code, California case law did not require exhaustion of the section 98.7 remedy. This is because “the amendments did not change the law regarding exhaustion of that remedy. Instead, ... the amendments merely confirm that a party may bring a civil action for violation of the Labor Code without first exhausting the remedy provided by § 98.7, subdivision (a).” Satyadi v. W. Contra Cost Healthcare Dist. (2014) 232 Cal. App.4th 1022, 1032-33. The holding in Satyadi clearly confirmed there was no requirement to exhaust administrative remedies before filing suit under Labor Code section 1102.5.” B. Plaintiff’s Claims for Race and Age Discrimination Properly State a Claim for Relief and are Sufficiently Certain Just like Defendant’s statute of limitations argument with respect to Plaintiff's 1102.5 claim, Defendant also argues Plaintiff’s race and age discrimination claims are time-barred by disregarding application of the continuing violation doctrine. Additionally, Defendant argues Defendant’s conduct towards Plaintiff that occurred in 2016 does not rise to the level of an adverse employment action. Both arguments are meritless. Just like the analysis above arguing for application of the continuing violation doctrine to Plaintiff’s 1102.5 claim, the continuing application is equally applicable to Plaintiff’s FEHA claims. The continuing violation doctrine is applicable when an employee raises a claim based 11 PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT -— © © 00 N O O O o h h w O N on conduct that occurred in part inside the limitations period and in other part outside the limitations period. Richards, supra, 26 Cal.4th at 812. Essentially, the continuing violation doctrine allows the courts to view various acts of discrimination as a single, actionable course of conduct. The reason for the continuing violation doctrine is that a constant system of discrimination operations against an employee violates her rights up to a point in time that falls within the applicable limitations period. Morgan v. Regents of University of California (2000) 88 Cal. App.4th 52, 64. Courts broadly construe the requirements of the continuing violation doctrine. Richards, supra, 26 Cal.4th at 802, 813, 817. In fact, it is sufficient for the continuing violation doctrine to apply if just one act occurred within the filing period. Morgan, supra, 88 Cal.App.4th at 64. Plaintiff contends the actions that occurred outside of the one-year acquired a degree of permanence. However, determination of permanence is inherently a question of fact, and thus is an improper question to be determined through demurrer. Birschtein v. New United Motor Mfg. Inc. (2001) 92 Cal. App.4th 994, 1006. The permanence requirement has been interpreted broadly “when the cause of action involves ongoing harassment” with courts inclined to find a continuing violation under a wide array of circumstances by “either concluding the employer’s actions had little ‘permanence’ or giving little weight to the permanence factor.” Birschtein v. New United Motor Mfg., Inc., supra, 92 Cal.App.4th at 1005-1006. The court has expressly held that “degree of permanence does not mean that the statute of] limitations begins to run merely when the employee is on notice that her rights have been violated. Richards, supra, 26 Cal.4th at 824. In fact, when the continued harassment and discrimination does not result in a constructive discharge, “the statute of limitations begins to run not necessarily when the employee first believes that his or her rights may have been violated, but rather, either when the course of conduct is brought to an end, as by the employer’s cessation of such conduct or by the employee’s resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.” Id. at 823. Defendant argues permanence occurred when Plaintiff was demoted and not allowed to apply for the position of Assistant to the City Manager and when she was not selected for the 12 PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT OO © oO o N N O O OO Hh W O N a N N ND ND ND N N D N D N A a a aa 4a c a a a a N N OO a h h W N A O © O N O O O D , W N A position of Administrative Services Director because of her age and gender. However, even after these events, Plaintiff continued her employment with Defendant and continued to be discriminated against. Even though it could be argued that when she was demoted and denied job opportunities Plaintiff was aware her rights were violated, the statute of limitations does not run as soon as the employee is on notice that her rights have been violated. /d. at 824. The California Supreme Court in Mullins v. Rockwell Internat. Corp. declare that “[a]s a practical matter, a rule requiring a lawsuit to be filed as soon as intolerable conditions begin would interfere with informal conciliation in the workplace.” (1997) 15 Cal.4th 731, 741. If such a requirement were imposed on employees to protect their rights, “it would in most cases prompt the employee to resign at the earliest date to avoid the awkwardness of maintaining employment while pursuing litigation against his or her employer.” Id. Romano v. Rockwell Internat. Inc. held that it is contrary to the purpose of the FEHA to encourage premature litigation at the expense of informal conciliation. (1996) 14 Cal.4th 479. Plaintiff should not be punished because she endured retaliation and discrimination for years. Defendant also argues the adverse actions that took place in 2016 are not sufficient to rise to the level of an adverse employment action. To determine whether an adverse employment action is sufficient, the court is to look at “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employees job performance or opportunity for advancement in his or her career.” Patten v. Grant Joint Union High School Dist. (2005) 134 Cal. App.4th 1378, 1387. “[T]he terms or conditions of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace.” Id. The adverse actions that occurred in 2016 materially affected Plaintiffs job performance and opportunity for advancement in her career. C. Plaintiff’s Claim for Failure to Investigate and Prevent Discrimination Sufficiently States a Claim for Relief “The employer’s duty to prevent harassment and discrimination is affirmative and mandatory.” Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal. App.4th 1021, 1035. An entity must take all reasonable steps to prevent discrimination and harassment 13 PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT © © © N N O O Oo Mh W O N N N N D N D ND ND N D ND D D N Aa a aa a a a a o a a o a o A N N O O Oa Bh W N A O O © O N O O D N W N 4a from occurring. Cal. Gov. Code § 12940(h)(1). Defendants sole argument against Plaintiffs claim for failure to investigate and prevent harassment is that Plaintiff cannot plead claims for gender and age discrimination. As stated in section (III)(B) above, Plaintiff has sufficiently plead claims for gender and age discrimination. Therefore, the demurrer to the claim for failure to prevent discrimination should be denied. D. If Any of Defendant’s Objections are Sustained, Leave to Amend Should be Granted The court may, in furtherance of justice, and on any terms may be proper, allow a party to amend any pleading....” Code Civ. Proc. § 473(a)(1); see also Code Civ. Proc. § 576. Indeed, “there is strong policy in favor of liberal allowance of amendments.” Messler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296. Here, there is no trial date in this action and the parties are in the very early stages of discovery. Additionally, Plaintiff believes she can allege additional facts to show that the continuing violation doctrine applies and that the treatment she endured is sufficient to meet the requirement of adverse action. Thus, to the extent that the Court] finds merit in any of Defendant’s arguments and sustains any part of its demurrer, the Court can and should grant Plaintiff leave to amend to more thoroughly state her claims. IV. CONCLUSION Based on the foregoing reasons, Plaintiff requests that Defendant’s demurrer is overruled in its entirety. In the alternative, Plaintiff requests leave to amend. Dated: December 2017 WAGNER & PELAYES, LLP COB P. MENICUCCI, Esq. ENNIS E. WAGNER, Esq. Attorney for Plaintiff TAMI PISCOTTY 14 PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT — oO © oO o N N O O Oo Mh w o n PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss: COUNTY OF RIVERSIDE ) I, the undersigned, declare: I am employed in the County of Riverside, State of California. I am over the age of 18 years and not a party to this action; my business address is 1325 Spruce Street, Suite 200, Riverside, California 92507. On the date written below, I served the document named below on the parties indicated below, in the following manner: XJ (By Overnight Mail) I am familiar with this office’s practice for the collection and processing of documents for overnight mail. The documents are collected by the delivery service company on the same day in the ordinary course of business. I caused said document(s) to be delivered in this manner. DOCUMENT: PLAINTIFE’S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFE’S FIRST AMENDED COMPLAINT PARTIES SERVED: Irma Rodriguez Moisa, Esq. Attorneys for Defendant Barbara S. Van Ligten, Esq. Jorge J. Luna, Esq. ATKINSON, ANDELSON, LOYA, RUUD & ROMO 12800 Center Court Drive South, Suite 300 Cerritos, California 90703-9364 Telephone No. (562) 653-3200 Facsimile No. (562) 653-3333 [Moisa@aalrr.com BVanligten@aalrr.com JLuna(@aalrr.com IX (STATE) I declare under penalty of perjury under the laws of the State of California, United State of America that the above 1s true and correct to the best of my knowledge. Executed on December 53 2017 at Riverside, California. <. Catlins Kim Connelly, Declbrant 15 PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF WESTMINSTER’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT