Easterbrook v. Inter-Con Security Systems, et al., 17CV-0415

Hearing: Demurrer

Date: March 28, 2018

On August 2, 2017, Plaintiff Matthew Easterbrook (“Plaintiff”) filed a complaint against Inter-Con Security Systems, Inc. (“Inter-Con”), California Department of Transportation (“Cal-Trans”), Vince Zorn, Buddy Cruz, and Leonard Phillips.

In his First Amended Complaint (“FAC”), Plaintiff alleges he worked as a security guard for Inter-Con on properties owned and operated by Defendant Cal-Trans from approximately July 2012 through his termination on or about August/September 2015. (FAC, ¶ 14.) Beginning in April 2014, Plaintiff was instructed to engage in mail delivery duties as part of his employment. (FAC, ¶ 15.) Around this time, Plaintiff informed his immediate supervisor, Mr. Phillips, that the mail delivery duties aggravated Plaintiff’s physical disabilities, identified as a metal screw in his big toe and asthma. (FAC, ¶ 16.) Mr. Phillips allegedly failed to engage in the interactive process with Plaintiff and told Plaintiff, “too bad, you have to do it.” (Ibid.)

Plaintiff’s FAC also alleges that Mr. Zorn, alleged to be a Cal-Trans facilities manager, threatened Plaintiff and caused him to “fear for his personal safety.” (FAC, ¶ 19.) Plaintiff sought to file a grievance with Mr. Phillips, who allegedly refused Plaintiff’s grievance because Mr. Zorn was not an Inter-Con employee. (Id. at ¶ 20.) In July 2015, Plaintiff apparently reported an incident of “workplace violence” to the California Highway Patrol, and was thereafter retaliated against by Mr. Phillips and Mr. Zorn. (Id. at ¶ 21.) In August 2015, Plaintiff filed a complaint with Cal-OSHA regarding unsafe conditions in his workplace, after which he was “immediately retaliated against” and thereafter terminated “for false and pretextual reasons.” (Id. at ¶¶ 24-26.)

Plaintiff’s FAC alleges eight causes of action under the Labor Code, Fair Employment and Housing Act (“FEHA”), and Business and Professions Code. Relevant to this motion is Plaintiff’s third cause of action, stylized as “disability harassment, discrimination, and retaliation” in violation of the FEHA, plead against all Defendants1. (FAC, ¶¶ 53-70.) Cal-Trans, Mr. Zorn, and Mr. Cruz2 generally demur to the third cause of action on the basis that it fails to state facts sufficient to constitute a claim against them. (Code Civ. Proc., § 430.10(e).) The Demurring Defendants specifically argue: (1) the FAC fails to
1 The third cause of action is the only claim pled against Cal-Trans, Mr. Zorn, Mr. Cruz, and Mr. Phillips. The remaining seven causes of action are pled against Inter-Con and Doe Defendants. (See FAC, passim.)

2 The moving Parties Cal-Trans, Mr. Zorn, and Mr. Cruz are collectively referred to as “the Demurring Defendants.”
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allege sufficient facts to establish that Plaintiff properly exhausted his administrative remedies; (2) the FAC fails to allege the Demurring Defendants had any supervisorial control over Plaintiff to hold them liable as Plaintiff’s employer under the FEHA; and (3) the individual Demurring Defendants are not liable under the FEHA for discrimination claims. (Demurrer, p. 2, ll. 9-16.)

(1) Plaintiff’s Exhaustion of Administrative Remedies.

Prior to commencing a civil action under the FEHA, a plaintiff must exhaust his or her administrative remedies by timely filing an administrative complaint with the California Department of Fair Employment and Housing (“DFEH”) and receiving a “right-to-sue” letter. (Gov. Code, §§ 12960, 12965(b).) This procedure is “a jurisdictional prerequisite to resort to the court,” and failure to file an administrative charge before commencing suit is ground for dismissing an action for violation of the FEHA. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613; Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70.) The administrative complaint must be filed with the DFEH within one year of the date the alleged unlawful practice occurred, and the civil lawsuit must be filed within one year from the date of the DFEH’s right-to-sue notice. (Gov. Code, § 12960(d); Williams v. Pacific Mut. Life Ins. Co. (1986) 186 Cal.App.3d 941, 951.)

Plaintiff filed his original complaint on August 2, 2017. He alleges he was terminated from employment sometime in late August or early September 2015. Thus, it is conceivable that Plaintiff could have filed his administrative charge and received his right-to-sue letter within one year of his termination from employment, and thereafter filed the instant lawsuit within a year of receiving the right-to-sue letter. Moreover, Plaintiff alleges he timely filed his administrative “charges and complaints” with the DFEH and has received right-to-sue letters under Government Code, section 12965(b). (FAC, ¶ 64.) Plaintiff has sufficiently pled his compliance with the exhaustion requirement3. (See Chin, et al., Cal Prac. Guide: Employment Litigation (The Rutter Group 2017) Ch. 19-D, § 19:420.1 [a FEHA complaint is subject to demurrer if it fails to allege administrative exhaustion or alleges plaintiff did not obtain a right-to-sue letter], emphasis added.) Should the Demurring Defendants eventually discover that Plaintiff’s exhaustion was untimely, they are free to move to summarily adjudicate Plaintiff’s claims against them on that basis.

3 Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 319, a non-FEHA case cited by the Demurring Defendants, is inapposite inasmuch as the exhaustion requirement at issue was defendant’s required internal grievance procedure, which plaintiff had not complied with, claiming she was excused from doing so. (Campbell, supra, at pp. 319, 323.) Here, Plaintiff offers no argument that he was excused from exhausting his administrative remedies under FEHA, and in fact asserts he has done so.
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(2) Whether the Demurring Defendants Had Supervisorial Control Over Plaintiff.

The Demurring Defendants argue that Plaintiff fails to establish that any of the Demurring Defendants were Plaintiff’s employer, or that they had control over Plaintiff’s employment. (Demurrer, p. 5, ll. 7-8.) However, Plaintiff alleges that all “Defendants” – including, presumably, the Demurring Defendants – were Plaintiff’s “employers, managers and supervisors.” (FAC, ¶ 54.) Moreover, while Plaintiff alleges he “worked as a security guard for Defendant Inter-Con” (FAC, ¶ 14), he also alleges a joint employer/alter ego relationship between all Defendants. (FAC, ¶¶10-12.) Plaintiff’s allegations are sufficient to withstand demurrer.

(3) Individual Liability for Discrimination Claims.

An aggrieved individual has no FEHA claim against individual supervisors or colleagues who discriminate against him or her. (Reno v. Baird (1998) 18 Cal.4th 640, 645.) Where a colleague or supervisor engages in discriminatory conduct, it is the employer, not the individual, who will be found liable. (Id. at p. 647, Janken v. Gm Hughes Electronics (1996) 46 Cal.4th 55, 66.) Likewise, a supervisor cannot be held personally liable for FEHA retaliation. (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173-1174; see Chin, et al., Cal Prac. Guide: Employment Litigation (The Rutter Group 2017) Ch. 7-A, §§ 7:175, et seq.)

Plaintiff is correct that he is “entitled to establish liability of individual non-employer Defendants under FEHA for harassing conduct of employees.” (Opp., p. 3, ll. 2-3, emphasis added.) However, Plaintiff’s third cause of action is not pled as a stand-alone cause of action for harassment; rather, it is stylized as “harassment, discrimination, and retaliation” in violation of the FEHA. (FAC, p. 12.) While Plaintiff is certainly entitled to proceed with his harassment claims against Mr. Zorn and Mr. Cruz, the same cannot be said with respect to his discrimination and retaliation claims. The demurrer is therefore sustained on this basis.

Conclusion.

Based on the foregoing, as to Plaintiff’s third cause of action, the demurrer of Cal-Trans, Vince Zorn, and Buddy Cruz is sustained with 20 days leave to amend.