2013-00145031-CU-WT

Kameelah Anthony vs. Phoenix Children’s Academy, Inc.

Nature of Proceeding: Hearing on Demurrer

Filed By: Pickles, Erika Barbara

Defendants Debbie Ramirez, Teresa Ahlbrecht and Eileen O’Connell’s (the Individual
Defendants) Demurrer to Plaintiffs’ Original Complaint is SUSTAINED, without leave to
amend.

Plaintiffs’ Complaint sets forth 12 causes of action against Defendants Phoenix
Children’s Academy, Inc., The Gift of Kids Daycare and Pre-School, and Debbie
Ramirez, Teresa Ahlbrecht and Eileen O’Connell (the individual defendants) in this
employment action.

Only the 3rd for violation of California Family Rights Act (“CFRA”) for interference with
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the exercise of CFRA rights (Gov. Code § 12945.2 and 2 C.C.R § 7297.9) and 4 for
tortious termination in violation of public policy based on the CFRA [Gov. Code §
12945.2] are brought against the individual defendants.

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The individual defendants demur to both the 3 and 4 causes of action on the
grounds that the complaint fails to state facts sufficient to constitute a cause of action
asserting that CFRA does not apply to individual defendants.

The elements of a cause of action for retaliation in violation of CFRA under the
circumstances of this case are as follows: (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. Department of
Transportation (2001) 90 Cal. App. 4th 255, 261.

Gov. Code § 12945.2 (t) provides: “It shall be an unlawful employment practice for an
employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise,
any right provided under this section.” “Employer” is defined to mean “(A) Any person
who directly employs 50 or more persons to perform services for a wage or salary.”
Gov. Code § 12945.2(c) (2) (A).

Plaintiff asserts that the Federal counterpart’s (FMLA) definition of “employer” is
applicable to the CFRA. However, the language in the FMLA is much broader than that
of CFRA, and includes both employers and “any person who acts, directly or indirectly,
in the interest of an employer to any of the employees of such employer.” 29 U.S.C.
§261 l (4) (A) (ii) (I). CFRA’s definition of “employer,” however, is limited to “[a]ny
person who directly employs 50 or more persons to perform services for a wage or
salary.” Gov’t Code § 12945.2(c) (2) (a). Plaintiff cites no cases that hold the broader
individual liability of the FMLA should be applied to claims under CFRA.

Plaintiff argues that the term “any person” in the California Code of Regulations
Section 7297.7 creates individual liability under CFRA. This reading of the regulation is
inconsistent with the plain language of CFRA, which explicitly states that it applies to
“employers”. See Gov’t Code §12945.2(t). To the extent the Fair Employment and
Housing Commission (FEHA) implemented Section 7297.7 to impose liability on
individuals such as supervisors; the regulation is contrary to CFRA. The FEHA does
not have authority to implement regulations that are inconsistent with the governing
statute. An agency invested with quasi-legislative power to adopt regulations has no
discretion to promulgate regulations that are inconsistent with the governing statute, in
that they alter or amend the statute or enlarge or impair its scope. Culminates v.
Braemar Country Club, Inc. (2003) 29 Cal. 4th 1019, 1029.

The Court finds that the statutory language differs, and as the plaintiffs have sued
under the CFRA, not the FMLA, the Court is bound to apply the clear unambiguous
intent of the California Legislature in limiting liability for termination to employers.

The demurrers of Defendants Debbie Ramirez, Teresa Ahlbrecht and Eileen
O’Connell’s (the Individual Defendants) are sustained, without leave to amend.

The prevailing parties shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.