30-2013-00688827

Demurrer by Defendants to Complaint:

The court sustains with 21 days’ leave to amend as to the fifth cause of action, and overrules as to all others.

(a) Second cause of action for retaliatory termination in violation of Health & Safety Code, § 1278.5: Overruled.

Govt. Code, § 1278.5, subd. (i), provides, “For purposes of this section, ‘health facility’ means any facility defined under this chapter, including, but not limited to, the facility’s administrative personnel, employees, boards, and committees of the board, and medical staff.” (Emphasis added.) The parties have not presented any published California state decisions addressing whether the term “health facility” pursuant to Govt. Code, § 1278.5 includes non-employer individuals.

Defendants, however, cite to an unpublished federal district court case which states “section 1278.5 applies to ‘health facilities’ and not individuals.” (Romero v. Cnty. of Santa Clara (N.D. Cal. Sept. 24, 2013) 11-CV-04812-WHO, 2013 WL 5340531, *2.) “While decisions of federal courts in matters of state law are not binding on state courts, they may be persuasive.” (In re Sloan’s Estate (1963) 222 Cal.App.2d 283, 293.) The court finds the Romero ruling unpersuasive because it is not clear whether the Romero court considered subdivision (i). Although it ultimately may be the case that an individual may not be held liable under Section 1278.5, Defendants have not established that to be the case at this time.

(b) Fourth cause of action for common law employment discrimination: Overruled.

The parties agree that an employee may state a claim for wrongful termination in violation of public policy based on age discrimination. (See Stevenson v. Superior Court (1997) 16 Cal.4th 880, 885.) Defendants appear to object to Plaintiff’s assertion of two causes of action for wrongful termination of public policy, instead of one. The first cause of action is for termination based on Plaintiff’s whistleblower actions, and the fourth cause of action is based on termination based on Plaintiff’s age. Although it may have been better practice for Plaintiff to plead one cause of action and allege alternative theories of liability, such alternative theories are clearly alleged and not duplicative of one another.

(c) Fifth cause of action for harassment in violation of Govt. Code, § 12940(j): Sustained with 21 days leave to amend.

To plead a claim of age harassment, Plaintiff must establish, inter alia, that the harassment was so severe or pervasive as to alter the terms and conditions of her employment and create an abusive work environment. (See Thompson v. City of Monrovia (2009) 186 Cal.App.4th 860, 876 [as applied to race harassment].) Here, the only factual allegation of harassment is that Defendant Sebanc told Plaintiff that the hospital would not hire certified nursing assistants and that other staff should tend to the patients’ needs. Even if this statement could be construed as showing Defendants’ harassment of Plaintiff because of her age—which it does not appear to be, it is one isolated incident. It does not show harassment so severe or pervasive as to alter the terms and conditions of Plaintiff’s employment or create and abusive work environment. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043 [as applied to sexual harassment].) Plaintiff’s remaining allegations, ¶¶35-36, are conclusory and not supported by any facts.

(d) Sixth cause of action for aiding and abetting employment discrimination in violation of Govt. Code, § 12940(i): Overruled.

As Plaintiff points out, the FEHA makes it unlawful for “any person” to “aid, abet, incite, compel or coerce” unlawful discrimination by the employer. (Govt. Code, § 12940, subd. (i) Plaintiff has pled this alternative theory of liability because it is unclear whether Plaintiff and Defendant Sebanc were employed by the same entity Defendant. If they were not, Defendant Sebanc could be liable under an aiding and abetting theory.

Defendants shall give notice.