2012-00123112-CU-OE

Rene Perez Bulmer vs. Ca Public Employees Retirement

Nature of Proceeding: Hearing on Demurrer

Filed By: Donald, Karen L.

Defendant Public Employees Retirement System’s Demurrer to Plaintiff’s Second
Amended Complaint (“SAC”) is SUSTAINED, without leave to amend.

st
Plaintiff’s Second Amended Complaint sets forth two causes of action: the 1 for
retaliation and the 2nd for failure to prevent retaliation.

The function of a demurrer is to test the legal sufficiency of the pleading by raising
questions of law. (Baldwin v. Zoradi (1981) 123 Cal.App.3d 275, 278). The Court is
required to liberally construe the allegations in plaintiff’s favor. (Code Civ. Proc., § 452)

1st Cause of Action – Retaliation (FEHA; Labor Code 1102.5)

To establish a prima facie case of retaliation, the plaintiff must show (1) she engaged
in a protected activity; (2) the employer subjected the employee to an adverse
employment action; and (3) a causal link between the protected activity and the
employer’s action. (Akers v. County of San Diego (2002) 95 Cal. App. 4th 1441, 1453.)
To constitute “protected activity” plaintiff must be complaining of conduct prohibited by
FEHA. (Akers , supra, at p. 1455.)

Here, Plaintiff alleges that she engaged in the following protected activities: (1)
complaining about the Division Chief’s inappropriate remarks; (2) opposed a request
that Plaintiff’s staff compensate an Acting Division Chief with eighty hours of
Administrative Time Off for working outside his classification for a three month period;

(3) expressed her concerns about plans to implement an automated timesheet system,
which Plaintiff believed would violate a legal agreement with the State Controller’s
Office; (4) complaining about a supervisor’s handling of a report by another employee
of sexual harassment.

Of these, the only activity that Plaintiff appears to allege is associated with an adverse
employment action is her complaints about the supervisor’s handling of the sexual
harassment report of another employee. (SAC ¶21.) The Court is persuaded that
Plaintiffs conclusory allegations (SAC 35-35) do not amount to a FEHA protected
activity; rather plaintiff alleges she complained about the way Silva handled the matter.
Plaintiff’s complaints of the manner Silva handled the matter involving another
employee altogether does not constitute the opposition of a practice forbidden by
FEHA or for filing a complaint, testifying, or assisting in a proceeding under the FEHA.
(See Gov. Code, § 12940, subd. (h).) As is noted by defendant, merely complaining
about a supervisor’s conduct and reporting complaints of others does not put an
employer on notice that plaintiff opposed conduct made unlawful by the FEHA. (
Garcia-Paz v. Swift Textiles, Inc. (1995) 873 F.Supp. 547, 559-560 [holding that
employee who champions the cause of an older worker is not engaged in protected
activity, even where the employee acts out of “an unarticulated belief that the employer
is discriminating on the basis of age … unless the activity in question advances beyond
advocacy and into recognizable opposition to an employment practice that the
claimant reasonably believes to be unlawful].) Even assuming complaints about the
competence of a supervisor in handling harassment reports constitutes protected
activity; the Court cannot conclude that Plaintiff was subjected to adverse employment
action as a result.

Plaintiff alleges she was subsequently subjected to adverse employment action,
including two counseling memoranda, one of which was later rescinded, not receiving
“job offers” from other state agencies, being assigned a new office space, that an
email was sent to the HR division advising that plaintiff was being reassigned to
other projects [“caused many of the human resources staff to shun and ostracize
Plaintiff…”], and a transfer to a different supervisor after she requested to not work
under the Division Chief any longer. (SAC paras. 36, 29, 30-31, inter alia)

As the Court has previously ruled, these do not constitute adverse employment actions
for purposes of FEHA, as they do not materially affect the terms and conditions of
plaintiff’s employment. (See Akers, supra , 95 Cal.App.4th at 1455 (“[T]o be actionable,
the retaliation must result in a substantial adverse change in the terms and conditions
of the plaintiff’s employment. A change that is merely contrary to the employee’s
interest or not to the employee’s liking is insufficient.”). An adverse employment action
materially affects the terms, conditions or privileges of employment, and must be likely
to impair a reasonable employee’s job performance or prospects for advancement or
promotion. Being socially shunned, ignored or treated coldly fails to state a viable
claim. Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1039 [ostracism by co-
employees insufficient], 1051, 1054-1055 [“a pattern of social slights by either the
employer or co-employees cannot properly be viewed as materially affecting the terms,
conditions, or privileges of employment”]; Patten v. Grant Joint Union High School Dist.
(2005) 134 Cal.App.4th 1378, 1387 [“minor or relatively trivial adverse actions by
employers or fellow employees that, from an objective perspective, are reasonably
likely to do no more than anger or upset an employee do not materially affect the terms
or conditions of employment”].) Work places are rarely idyllic retreats, and the mere
fact that an employee is displeased by an employer’s act or omission does not elevate

that act or omission to the level of a materially adverse employment action. Thomas v.
Dep’t. of Corrections (2000) 77 Cal.App.4th 507, 510. Moreover, “[t]he employment
action must be both detrimental and substantial.” (Id.) A counseling memoranda or
negative performance evaluation, without allegations that the employer used the
information to substantially and materially change the terms and conditions of
employment, do not constitute adverse employment actions. (Akers, supra , at p.1457.)
Similarly, changes in title, bruised ego, and reassignments without salary or work hour
changes do not ordinarily constitute adverse employment decisions. See, e.g.
Lawrence v. Hartnell Community College Dist., (2011) 194 Cal. App. 4th 687, 697, fn.
6.

As for Plaintiff’s claim for retaliation under Labor Code §1102.5, the allegations to
support a Labor Code, sec. violation require citation to the specific federal or state
statute or regulation which has been violated. (Love v. Motion Indus. (N.D. Cal. 2004)
309 F. Supp. 2d 1128, 1134.) Plaintiff fails to allege any such statutory or regulatory
basis for this claim.

As Plaintiff was previously granted leave to amend to cure the defects identified, the
demurrer to the second cause of action is sustained without leave to amend.

Second Cause of Action – Failure to Prevent Harassment/Retaliation (FEHA)

As the demurrer to the first causes of action has been sustained, this cause of action
must also fail. (Trujillo v. North County Transit Dist. (1998) 63 Cal. App. 4th 280, 289.)

The demurrer to the second cause of action is sustained without leave to amend.

Prevailing party is directed to submit a judgment for the Court’s signature.