Case Name: Choates v. County of Santa Clara
Case No.: 17CV317647

On October 18, 2017, plaintiff Michelle Choates (“Plaintiff”) filed an initial complaint against defendant County of Santa Clara (“Defendant” or “County”). The complaint did not allege facts, but stated that she “attached an outline of my motion to pursue with a lawsuit against the County of Santa Clara in regards to the discrimination, harassment, hostile work environment, and retaliation that I have been subjected to because of my filing of complaints against them. On May 17, 2017, DFEH issued me a “Right to Sue” notice. I worked for the County of Santa Clara from October 2001 through August 2015.” (Complaint, p.1.) The Court granted County’s motion for judgment on the pleadings as to the complaint on July 9, 2019, stating that “Plaintiff fails to identify the claims she is asserting or the nature of the relief she is requesting and does not otherwise allege facts sufficient to state causes of action under theories she is presumably relying on.” (July 9, 2019 order re: motion for judgment on the pleadings, p.9:24-26.) On July 22, 2019, Plaintiff filed a first amended complaint (“FAC”). County demurs to the FAC on the grounds that it is both uncertain and fails to state facts sufficient to constitute a cause of action.

The FAC does not clearly articulate the basis for causes of action, but it appears to assert causes of action for “discrimination,” “harassment,”, “retaliation—disparate treatment,” “hostile work environment,” whistleblower protected activity violations,” and “ADA and FEHA violations.”

The portion of the FAC under the subheading “discrimination” alleges that the “discrimination complaint is on the basis of my disabilities” and that Plaintiff “had to use FMLA, CFRA and… Shannon Bushey allowed for the harassment to occur due to the use of medical leave under the California’s Family Rights Act and the Family Medical Leave Act.” (FAC, p.2:14-15.) The FAC additionally alleges that “Matt Moreles and Shannon Bushey used the issue of coverage for me when I was out on medical leave, in an attempt to create friction towards my opportunity to be included in promotional activities….” (FAC, p.3:11-13.) Plaintiff sent emails to Shannon Bushey regarding her medical leave before Bushey ultimately issued a letter threatening disciplinary action stating that she had not heard from Plaintiff. (See FAC, pp.4:12-27, 5:1-2.)

CFRA

As to any cause of action pursuant to CFRA, the Court previously stated:

“The CFRA makes it unlawful for an employer of 50 or more persons ‘to refuse to grant a request by an employee’ for family care and medical leave and ‘to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right’ provided by the CFRA.” (Soria v. Univision Radio L.A., Inc. (2016) 5 Cal.App.5th 570, 600–01, quoting Gov. Code, § 12945.2, subds. (a), (t).) Plaintiff does not allege she was denied leave under the CFRA or that her employer otherwise interfered with her exercise of rights under the statute. And so, Plaintiff does not state a claim for refusal to grant or interference with leave under the CFRA.

“It is also an unlawful employment practice to discharge or discriminate against any individual because of his or her exercise of the right to family care or medical leave as provided by the CFRA.” (Soria, supra, 5 Cal.App.5th at p. 601, citing Gov. Code, § 12945.2, subd. (l)(1).) The elements of a cause of action for retaliation in violation of CFRA are: “(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA leave.” (Dudley v. Dept. of Transportation (2001) 90 Cal.App.4th 255, 261.) Plaintiff does not allege sufficient facts with respect to all of the elements of a CFRA retaliation claim. Although Plaintiff seems to have taken some type of leave, she does not allege the first three elements of her claim, namely that Defendant was a covered employer, she was eligible for CFRA leave, and she took leave for a qualifying purpose.

(July 9, 2019 order re: motion for judgment on the pleadings, pp.4:16-25, 5:1-16

Here, the FAC does not allege that she was denied leave under CFRA. Based on the subheading, it appears that she is alleging discrimination based on exercise of the right to medical leave; however, the FAC still fails to allege that County was a covered employer, she was eligible for CFRA leave, and she took leave for a qualifying purpose. The FAC also does not allege that she suffered an adverse employment action because of her exercise of the right to medical leave; rather, it merely alleges that her “complaints were not properly investigated… internally by the County, and was not truthfully nor accurately reported to DFEH.” (FAC, p.2:13-19.)

Accordingly, the FAC still fails to state facts sufficient to constitute a cause of action pursuant to CFRA. Further, Plaintiff apparently concedes such a failure as CFRA is not addressed in her belatedly filed opposition whatsoever. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), citing Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341 (stating same); see also Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128 (stating same); see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “[t]he burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended… [w]here a verified complaint contains allegations destructive of a cause of action, the defect cannot be cured in subsequently filed pleadings by simply omitting such allegations without explanation”).)

FMLA

In the prior order, as to any cause of action pursuant to FMLA, the Court stated: “Plaintiff fails to state a claim for retaliation in violation of the FMLA for the same reasons set forth above relative to her apparent CFRA claim.” (July 9, 2019 order re: motion for judgment on the pleadings, p.6:1-12.) County’s argument similarly argues that “Plaintiff failed to state a claim for retaliation in violation of the FMLA for the same reasons set forth above regarding her CFRA retaliation claim.” (Def.’s memorandum of points and authorities in support of demurrer, p.13:11-13.) As with the CFRA allegations, the FAC still fails to state facts sufficient to constitute a cause of action pursuant to CFRA. (See Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014) 743 F.3d 1236, 1243, quoting Sanders v. City of Newport (9th Cir. 2011) 657 F.3d 772, 778 (stating that “[t]o make out a prima facie case of FMLA interference, an employee must establish that ‘(1) he was eligible for the FMLA’s protections, (2) his employer was covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient notice of his intent to take leave, and (5) his employer denied him FMLA benefits to which he was entitled”); see also Dudley v. Dept. of Transportation (2001) 90 Cal.App.4th 255, 261 (stating that “[t]o make out a prima facie case of retaliation in violation of FMLA, a plaintiff must show that ‘(1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; [and] (3) there is a causal connection between the employee’s protected activity and the employer’s adverse employment action”), quoting Hodgens v. General Dynamics Corp. (1st Cir. 1998) 144 F.3d 151, 161.)

Plaintiff’s belatedly filed opposition completely ignores any deficiency related to any cause of action premised on FMLA as there is no discussion of the FMLA at all. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), citing Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341 (stating same); see also Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128 (stating same); see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “[t]he burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended… [w]here a verified complaint contains allegations destructive of a cause of action, the defect cannot be cured in subsequently filed pleadings by simply omitting such allegations without explanation”).)

Whistleblower statutes

The FAC alleges that “Matt Moreles yelled at me in a management meeting and another manager made statements such as, ‘I smell a rat’ when I filed a whistleblower complaint about mishandling of ballots, misuse of county funds, and a county worker altering his domestic partner’s and his pay stubs….” (FAC, p.2:22-25.) “After filing a whistleblower complaint, I was left off of the applicants list to participate in part of the application process, even when I met the Minimum Qualifications of the position.” (FAC, p.3:8-10.) Plaintiff emailed certain County employees “informing them that I was concerned about how the whistleblower complaint situation was being handled and the impact it was having on me in the work environment.” (FAC, p.4:9-11.) Plaintiff made these complaints between June 2014 and August 31, 2015, and disclosed them verbally in a meeting in December 2014 and January 27, 2015. (See FAC, p.5:14-17.) “[D]isciplinary action was threatened on Plaintiff… for executing the right to participate in the complaint process.” (FAC, p.13:16-18.) The identified statutory bases for any such cause of action are: FEHA (see FAC, pp.6:3-27, 7:1-27, 8:1-28, 9:1-28, 10:1-18), Labor Code section 1102.5 (see FAC, pp.10:19-28, 11:1-18), Labor Code sections 6306 and 6310 (see FAC, pp.11:19-28, 12:1-28, 13:1-7), and Government Code section 8547 (see FAC, p.13:8-12).

FEHA

The FAC quotes Government Code section 12940 at length. (See FAC, pp.6:5-27, 7:1-227, 8:1-28, 9:1-28, 10:1-18.) However, the FAC completely fails to allege any facts to support any violation of section 12940. Instead, the FAC merely alleges that “[t]he County violated and did not follow FEHA Whistleblower Protections for Plaintiff, Michelle Choates.” (FAC, p.6:3-4.) As previously stated, the FAC also alleges other facts that are untethered to any violation of FEHA; however, the California Supreme Court has stated that “statutory causes of action must be pleaded with particularity.” (Covenant Care, Inc. v. Super. Ct. (Inclan) (2004) 32 Cal.4th 771, 790.) The FAC fails to allege any cause of action for retaliation in violation of FEHA or in violation of any whistleblower statute relating to FEHA, and, in opposition, Plaintiff fails to substantively address this failure. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), citing Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341 (stating same); see also Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128 (stating same); see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “[t]he burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended… [w]here a verified complaint contains allegations destructive of a cause of action, the defect cannot be cured in subsequently filed pleadings by simply omitting such allegations without explanation”).)

Labor Code section 1102.5

The FAC similarly quotes Labor Code section 1102.5 at length (see FAC, pp.10:21-28, 11:1-18), and similarly fails to allege any facts with particularity to support a violation of Labor Code section 1102.5: “The County also violated Labor Code 1102.5 that provides whistleblower protections—by retaliating against plaintiff, Michelle Choates after she filed her whistleblower complaints.” (FAC, p.10:19-20.) The FAC fails to allege any cause of action for retaliation in violation of Labor Code section 1102.5. (See McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 468 (stating that “[t]o establish a prima facie case of retaliation, the plaintiff ‘must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two’”).) Moreover, as County argues, the FAC also does not allege compliance with the Government Claims Act. Government Code section 945.4 states that “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division.” (Gov. Code § 945.4; see also State of Cal. v. Super. Ct. (Bodde) (2004) 32 Cal.4th 1234, 1239 (hereinafter, “Bodde”).) “[F]ailure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity.” (Bodde, supra, 32 Cal.4th at p. 1239; see also Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 332 (California Supreme Court refraining from adopting exemption from rule requiring exhaustion of administrative remedies for violation of Labor Code § 1102.5); see also Terris v. County of Santa Barbara (2018) 20 Cal.App.5th 551, 558 (concluding that while an employee need not file a claim with the Labor Commissioner for violation of 1102.5, she must still exhaust internal administrative remedies).)

Here, there is no allegation of any compliance with the claims presentation requirement or exhaustion of internal administrative remedies, and, in opposition, Plaintiff apparently concedes the issue as it is not addressed. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), citing Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341 (stating same); see also Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128 (stating same); see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “[t]he burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended… [w]here a verified complaint contains allegations destructive of a cause of action, the defect cannot be cured in subsequently filed pleadings by simply omitting such allegations without explanation”).)

Labor Code sections 6306 and 6310

Like the other allegations of the FAC regarding various statutes, the FAC quotes Labor Code sections 6306 and 6310 (see FAC, pp.11:21-28, 12:1-28, 13:1-7), but fails to allege any facts with particularity to support a violation of those statutes. Here, the FAC merely alleges that “the County did not maintain appropriate ‘safety’ and ‘health’ standards as defined in the California Division of Occupational Safety and Health (Cal/OSHA) guidelines as defined in California Labor Codes….” (FAC, p.11:19-21.) For reasons discussed with regards to the other statutes above, the FAC fails to allege facts sufficient to constitute a cause of action for violation of Labor Code sections 6306 and 6310. Further, County argues that Plaintiff fails to state a cause of action premised on Labor Code sections 6306 and 6310 because the FAC fails to allege presentation of her claim. Labor Code section 6312 plainly states that “[a]ny employee who believes that he or she has been discharged or otherwise discriminated against by any person in violation of Section 6310 or 6311 may file a complaint with the Labor Commissioner pursuant to Section 98.7.” (Lab. Code § 6312.) The FAC neither alleges the filing of a complaint with the Labor Commissioner nor the exhaustion of internal administrative remedies.

Again, Plaintiff apparently concedes the issue as Labor Code sections 6306 and 6310 are not addressed in her opposition. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), citing Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341 (stating same); see also Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128 (stating same); see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “[t]he burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended… [w]here a verified complaint contains allegations destructive of a cause of action, the defect cannot be cured in subsequently filed pleadings by simply omitting such allegations without explanation”).)

The California Whistleblowers Protection Act, Government Code section 8547, et seq.

Lastly, Plaintiff alleges a cause of action premised on the California Whistleblower Protection Act (WPA), Government Code section 8547, et seq. (See FAC, p.13:8-19 (alleging that “[t]he County also falls under the ‘California Whistleblower Protection Act’ for public employees as set forth in Government Code 8547, as it relates to agencies reporting to the State. The violations of laws covered in this specific code reflect State standards for reporting violations”).) However, as County argues, the WPA only applies to employees of a State agency, as defined by Government Code section 11000, which “includes every state office, officer, department, division, bureau, board, and commission.” (Gov. Code § 11000 (defining “state agency”); see also Gov. Code § 8547.2 (stating that “‘state agency’ is defined by Section 11000”; also defining “employee” as “an individual appointed by the Governor, or employed or holding office in a state agency as defined by section 11000).) Plaintiff alleges that she is a former employee of County, not the State. Further, even if the WPA applied, Plaintiff also fails to allege that she has filed a complaint with the State Personnel Board, as is required for such a cause of action. (See State Bd. of Chiropractic Examiners v. Super. Ct. (Arbuckle) (2009) 45 Cal.4th 963, 978 (concluding that “section 8547.8(c) means what it says: An employee complaining of whistleblower retaliation may bring an action for damages in superior court, but only after the employee files a complaint with the State Personnel Board and the board ‘has issued, or failed to issue, findings’”).)

It is clear that the FAC fails to allege facts supporting a cause of action based on the WPA. In opposition, Plaintiff fails to address any deficiency regarding the WPA. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), citing Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341 (stating same); see also Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128 (stating same); see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “[t]he burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended… [w]here a verified complaint contains allegations destructive of a cause of action, the defect cannot be cured in subsequently filed pleadings by simply omitting such allegations without explanation”).)

Section 1983 claim for retaliation based on exercise of First Amendment rights

The FAC alleges that “County violated… [Plaintiff’s] US Constitutional Freedom Speech 1st Amendment Rights… by discriminating, retaliating, harassing and causing emotional distress as part of Plaintiff, Michelle Choates activity within these protections.” (FAC, p.5:19-23.) “Plaintiff, Michelle Choates was denied a transfer from the Registrar of Voters office when she informed management that this was severely affecting her.” (FAC, p.5:23-24.) County demurs to any cause of action premised on 42 U.S.C. § 1983 for unconstitutional retaliation of the exercise of First Amendment rights because it fails to allege any whistleblower complaint involving a matter of public concern. Indeed, “[t]he First Amendment shields a public employee if he speaks as a citizen on a matter of public concern.” (Ellins v. City of Sierra Madre (9th Cir. 2013) 710 F.3d 1049, 1056.) “However, ‘when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.’” (Id., quoting Garcetti v. Ceballos (2006) 547 U.S. 410, 421.) “[T]he plaintiff bears the burden of showing: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; and (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action.” (Ellins, supra, 710 F.3d at p.1056.) Here, the FAC alleges that the exercise of her First Amendment Rights concerned the denial of a transfer from the Registrar of Voters office. The FAC does not otherwise specify as to what might otherwise constitute a violation of her First Amendment rights. Plaintiff apparently concedes the issue as neither the First Amendment nor other Constitutional rights are mentioned in her opposition. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), citing Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341 (stating same); see also Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128 (stating same); see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “[t]he burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended… [w]here a verified complaint contains allegations destructive of a cause of action, the defect cannot be cured in subsequently filed pleadings by simply omitting such allegations without explanation”).)

ADA

In the Court’s prior order, it stated:

“The ADA provides: ‘No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.’” (Green v. State of Cal. (2007) 42 Cal.4th 254, 261, quoting 42 U.S.C. § 12112(a).) Here, Plaintiff fails to allege she was a qualified individual with a disability. She also fails to allege facts reflecting what discriminatory conduct she experienced as a result of her purported disability. Thus, Plaintiff fails to state an ADA claim.

(July 9, 2019 order re: motion for judgment on the pleadings, p.6:14-21.)

The FAC alleges that “The COUNTY’s constructive termination violated ADA compliance, in which they refused to reasonably accommodate disabilities when they had knowledge and records, as well as ongoing communication from the plaintiff, Michelle Choates about the disabilities.” (FAC, p.13:21-24.) As with the initial complaint, although the FAC alleges that Plaintiff suffered from “depression, anxiety and having a stroke,” the FAC does not allege whether or how she was a qualified individual with a disability that substantially limited one or more of her life activities for a significant amount of time. (See 42 U.S.C. § 12102, subds. (1) (defining “disability” as an individual with “a physical or mental impairment that substantially limits one or more major life activities of such individual… record of such an impairment… or being regarded as having such an impairment”), (2) (defining “major life activities as “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working”).)

Additionally, as County argues, although the FAC alleges that she was “constructively terminated,” the FAC fails to allege facts with sufficient particularity that she suffered an adverse employment action because of her disabilities. In opposition, Plaintiff merely states that “ADA elements have been included in my amended complaint, as well as ‘specific actions’ by the County of Santa Clara that violated these rights… I did suffer a stroke and the County was aware of this.” (Opposition, p.2:4-7.) However, Plaintiff does not identify any such facts from the FAC to support her argument, and does not otherwise state how she would be able to amend the FAC so as to state a viable cause of action. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), citing Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341 (stating same); see also Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128 (stating same); see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “[t]he burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended… [w]here a verified complaint contains allegations destructive of a cause of action, the defect cannot be cured in subsequently filed pleadings by simply omitting such allegations without explanation”).)

FEHA

In the Court’s prior order, it stated:

“Like the ADA, and like its predecessor the Rehabilitation Act of 1973, today the FEHA, section 12940, subdivision (a), prohibits discrimination based on an employee’s physical [or mental] disability.” (Green, supra, 42 Cal.4th at p. 262.) “Under the FEHA, it is unlawful ‘[f]or an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition…of any person, …to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.’” (Ibid., quoting Gov. Code, § 12940, subd. (a).) Here, Plaintiff fails to state a claim for disability discrimination under the FEHA because, as set forth above, she does not identify her disability and set forth facts showing some adverse action was taken based on her disability. Instead, she seems to focus on her use of leave and whistleblower complaints.

Plaintiff also states she experienced harassment, which is another unlawful employment practice under the FEHA. (Gov. Code, § 12940, subd. (j)(1).) Harassment “‘consists of a type of conduct not necessary for performance of a supervisory job.’” (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1407, quoting Reno v. Baird (1998) 18 Cal.4th 640, 645–46.) In other words, it “‘consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.’” (Jumaane, supra, 241 Cal.App.4th at p. 1407, quoting Reno, supra, 18 Cal.4th at pp. 645–46.) “When the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, the law is violated.” (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 409 [internal quotation marks and citations omitted]; see also Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 460–61.) Although Plaintiff states she experienced harassment based on her disability, she does not otherwise allege facts about this purported harassment. Indeed, she attributes being “yelled at” and called a “rat” to her whistleblower complaint, rather than her disability. Thus, Plaintiff fails to state a claim for harassment under the FEHA.

(July 9, 2019 order re: motion for judgment on the pleadings, pp.6:23-28, 7:1-21.)

Here, the FAC has two specific paragraphs regarding discrimination and harassment, and a conclusory allegation that “[t]he County failed to acknowledge Plaintiff, Michelle Choates[‘] rights pertaining to [FEHA].” (See FAC, pp.2:9-28, 3:1-3, 13:25-28, 14:1-7.) Like the initial complaint, the FAC’s basis for the discrimination cause of action is premised on the use of her leave and whistleblower complaints. The FAC alleges that her “complaints were not properly investigated.” This failure to properly investigate is not an adverse employment action as it is neither an enumerated basis in subdivision (a) of section 12940, nor is alleged to materially affect Plaintiff’s compensation, terms conditions or privileges of employment. (See Gov. Code § 12940, subd. (a) (discrimination encompasses a refusal to hire or train, the termination, or other discrimination in compensation, terms, conditions, or privileges of employment); see also Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054 (stating that “[a]lthough a mere offensive utterance or even 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 for purposes of section 12940(a) (or give rise to a claim under section 12940(h)), the phrase ‘terms, conditions, or privileges’ of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide”).)

Although the FAC alleges that Plaintiff was not provided reasonable accommodations in its allegations regarding retaliation, as County argues, there are no facts alleged to support that Plaintiff requested a reasonable accommodation, or that Plaintiff was able to perform the essential functions of her position with or without any reasonable accommodation. Plaintiff does not allege facts with particularity that she engaged in protective activity regarding her disability status for which she suffered retaliation. In opposition, Plaintiff merely states that “FEHA and ADA elements have been included in my amended complaint, as well as ‘specific actions’ by the County of Santa Clara that violated these rights… I did suffer a stroke and the County was aware of this.” (Opposition, p.2:4-7.) However, Plaintiff does not identify any such facts from the FAC to support her argument, and does not otherwise state how she would be able to amend the FAC so as to state a viable cause of action. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), citing Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see also Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341 (stating same); see also Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128 (stating same); see also Hendy v. Losse (1991) 54 Cal.3d 723, 742 (stating that “[t]he burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended… [w]here a verified complaint contains allegations destructive of a cause of action, the defect cannot be cured in subsequently filed pleadings by simply omitting such allegations without explanation”).)

Workers’ Compensation

The FAC again appears to allege a cause of action based on the wrongful denial of a workers’ compensation claim. (See FAC, pp. 2:12-13 (alleging Workers’ Compensation Claim was not properly investigated), 3:26-28 (alleging workers’ compensation claim “was denied because the County claims that they didn’t receive medical information when there were signed medical releases of information in addition to medical notes that were provided to them”).) Plaintiff’s opposition also states that “A Workers’ Compensation claim was filed due to these conditions set forth in my claim; onset of depression, anxiety and emotional distress.” (Opposition, p.2:6-7.) However, as stated in the prior order, “the statute vests the Workers’ Compensation Appeals Board with exclusive authority (subject only to judicial review) to hear claims; ‘a trial court has no jurisdiction to hear a civil cause of action for an employer’s breach of Labor Code section 132a’ in the first instance.” (July 9, 2019 order re: motion for judgment on the pleadings, pp.8:28, 9:1-3, quoting Dutra v. Mercy Medical Center Mt. Shasta (2012) 209 Cal.App.4th 750, 755.) Thus, as previously stated, Plaintiff may not state a cause of action for the wrongful denial of her workers’ compensation claim.

Accordingly, County’s demurrer to the FAC is SUSTAINED. Parties shall appear to argue as to whether leave should be granted.