Case Number: EC060401 Hearing Date: June 13, 2014 Dept: B

Demurrer

Motion for Judgment on the Pleadings

Case Management Conference

The Plaintiff alleges she was an employee of the Defendant until her employment was terminated on the pretext that she had stolen money. However, the actual reason for the termination was that the Defendant was engaged in sexual harassment. The Defendant stated that the Plaintiff was not qualified to do a man’s work. The Defendant terminated the Plaintiff’s employment in retaliation for her refusal to voluntarily quit.

The causes of action in the First Amended Complaint are:
1) FEHA Claim – Sexual Harassment
2) FEHA Claim – Failure to Prevent Harassment
3) FEHA Claim – Retaliation

This hearing concerns the Defendant’s demurrer and motion for a judgment of the pleadings.

An initial issue is that the motion for a judgment on the pleadings is redundant. A motion for judgment on the pleadings has the purpose and effect of a general demurrer and is filed because the time to file a demurrer has expired. Smiley v. Citibank (S.D.), N.A. (1995) 11 Cal. 4th 138, 145 to 146. Just as on a demurrer, the Court examines the allegations in order to determine whether they contain the essential facts necessary to plead a valid cause of action and accepts as true all material facts alleged therein. Id.

The Defendant’s motion for a judgment on the pleadings attacks each cause of action on the same grounds as the demurrer, i.e., the Plaintiff failed to exhaust her administrative remedies and each cause of action fails to state sufficient facts. Further, the Defendant filed a single memorandum in support of both.

Accordingly, the Court takes the motion for a judgment on the pleadings off calendar because it is redundant and merely repeats the arguments in the demurrer.

1. Demurrer based on Failure to Exhaust Administrative Remedies

The Defendant argues that the Plaintiff’s claims are barred because she did not exhaust her administrative remedies for her claims based on sexual harassment. A plaintiff pleading a claim for the violation of FEHA must exhaust his or her administrative remedies in order for the Court to have jurisdiction over the civil claim. Okoli v. Lockheed Tech. Operations Co. (1995) 36 Cal. App. 4th 1607, 1613. Exhaustion in this context requires filing a written charge within one year of the alleged unlawful employment discrimination and obtaining notice of the right to sue. Rodriguez v. Airborne Express (9th Cir. Cal. 2001) 265 F.3d 890, 897. The scope of the written administrative charge defines the permissible scope of the subsequent civil action. Id. Allegations in the civil complaint that fall outside of the scope of the administrative charge are barred for failure to exhaust. Id.

The Plaintiff attached a copy of her written charge in untabbed exhibit 1 to her First Amended Complaint. A review of the written charge indicates that she did not state that she had suffered any sexual harassment. The written charge indicates that she was terminated for stealing money and that cameras indicated that she was not stealing money. The Plaintiff made marks to indicate that she had suffered a termination, layoff, demotion, denial of employment, denial of promotion, denial of transfer, and denial of accommodation.

The Plaintiff did not make a mark next to harassment, failure to prevent discrimination, or retaliation. However, the Plaintiff then made a mark to indicate that her termination, layoff, demotion, denial of employment, denial of promotion, denial of transfer, and denial of accommodation was caused by sex, age, religion, race, national origin, sexual orientation, and retaliation for engaging in protective activity.

The Plaintiff also provided an attachment to her written charge. A review of the attachment reveals no language or claim that she suffered any harassment, discrimination, or retaliation based on her gender. Instead, the Plaintiff states that her employment was terminated on the ground that she had stolen money, even though cameras indicated that she had not stolen the money.

In her First Amended Complaint, the Plaintiff brought claims for sexual harassment, failure to prevent discrimination, and retaliation. Since a review of the Plaintiff’s written charge reveals that she did not place a mark next to these claims and that she did not state in her written attachment that she had suffered sexual harassment or retaliation based on her gender, the Plaintiff’s allegations fall outside of the scope of the administrative charge and are barred for the failure to exhaust.

In her opposition, the Plaintiff argues that the claims in her First Amended Complaint are “like or reasonably related to” the claims in her written charge. Claims regarding incidents not listed in a written charge may nevertheless be asserted in a civil action if they are “like or reasonably related to the allegations of the written charge. Albano v. Schering-Plough Corp. (9th Cir. Wash 1990) 912 F.2d 384, 386. This standard is met where the allegations in the civil suit are within the scope of the administrative investigation “which can reasonably be expected to grow out of the charge of discrimination.” Rodriguez v. Airborne Express (9th Cir. Cal. 2001) 265 F.3d 890, 897.

The Plaintiff relies upon the mark she made next to “sex” to support her argument that her claim is like or reasonably related to the claims in her First Amended Complaint. However, the Plaintiff also made marks next to “age”, “religion”, “race”, “national origin”, “sexual orientation”, and “retaliation for engaging in protected activity”. It is not reasonable to interpret the mark next to “sex” as indicating that she suffered sexual harassment or retaliation based on her gender because, when the entire written charge is reviewed, there is no mention of sexual harassment or retaliation based on gender. Further, it cannot reasonably be expected that claims of sexual harassment and retaliation are within the scope of an investigation of a written charge that the Plaintiff was fired for stealing money when the cameras indicated that she was not stealing.

The attachment sheet to the Plaintiff’s written charge includes specific details about her claim in her attachment. The Plaintiff specifies that she was fired for stealing money even though cameras proved that she was not stealing. However, in her First Amended Complaint, the Plaintiff alleges claims based on sexual harassment because the Defendant made statements that the Plaintiff was “not qualified to handle a man’s work” and that the Defendant failed to prevent this sexual harassment. Further, the Plaintiff claims that she suffered retaliation because she rejected offensive touching and she failed to quit voluntarily “a man’s field”.

The Plaintiff’s written charge has no language whatsoever regarding this conduct or any other type of harassment or retaliation based on gender. On the contrary, the Plaintiff’s written charge concerns solely her claim that she was terminated for stealing money. It is not reasonable to find that it is like or related to the claims in her First Amended Complaint for sexual harassment and retaliation.

Therefore, the Court sustains the demurrer to the entire First Amended Complaint on the ground that the allegations in the Plaintiff’s First Amended Complaint fall outside of the scope of her written charge and they are barred for her failure to exhaust her administrative remedies.

It does not appear reasonably possible for the Plaintiff to correct this defect by amendment because she is limited to the language in her written charge. As noted above, the Court has no jurisdiction because the Plaintiff failed to exhaust her administrative remedies.

Under California law, the Plaintiff must show in what manner the Plaintiff can amend his Complaint and how that amendment will change the legal effect of the pleading. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. The Plaintiff made a generic request for leave to amend on page 9 of her opposition papers. The Plaintiff does not support this request with any explanation of the manner by which she can correct her pleadings. Accordingly, the Court does not grant leave to amend.

2. Demurrer Based on Failure to State Sufficient Facts

In addition, there are grounds for a demurrer because the Plaintiff’s claims lack the particular facts needed to state her claims. The Plaintiff’s First Amended Complaint is seeking relief under Government Code section 12940. To plead statutory claims, the pleadings must state with reasonable particularity the facts supporting the statutory elements of the violation. Khoury v. Maly’s of California, Inc. (1993) 14 Cal. App. 4th 612, 619.

The Plaintiff does not plead her claims with particularity. In her first cause of action for sexual harassment, the Plaintiff pleads only conclusions in paragraphs 18 and 19 that the conduct was unwelcome, directed towards Plaintiff, part of an ongoing and continuing pattern, intimidating, hostile, abusive, or offensive. There are no particular facts to support this conclusions.

In the second cause of action for failure to prevent harassment, the Plaintiff alleges in paragraphs 27 to 29 the conclusions that the Defendant failed to take all reasonable steps, engaged in a pattern of sexual harassment, failed to make an adequate response and investigation, and established a policy that condoned sexual harassment. There are no particular facts to support these conclusions.

In the third cause of action, the Plaintiff alleges in paragraph 39 that the Defendant terminated her employment in retaliation “for her rejection to voluntarily quit a man’s field and unwanted sexual behavior and complaints regarding such behavior.” This conclusion lacks any supporting, particular facts.

Therefore, the Court sustains the demurrer to each cause of action in the First Amended Complaint on the ground that they lack sufficient facts. .