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

I. Background

Michelle Choates (“Plaintiff”) commenced this action against her former employer, the County of Santa Clara (“Defendant”), to redress discrimination, harassment, and retaliation she endured while working in the office of Defendant’s Registrar of Voters. In the body of Plaintiff’s complaint, she states the following:

I have attached an outline of my motion to pursue with a lawsuit against [Defendant] 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 [Defendant] from October 2001 through August 2015.

In the outline attached to the complaint—which seems to be what Plaintiff perhaps submitted to DFEH—she states she began working for Defendant in 2001 and resigned in August 2015. She alleges the discrimination, harassment, and retaliation took place during an eight-month period from December 2014 until her resignation. She alleges the misconduct occurred on account of an unspecified disability, use of leave under the California Family Rights Act (“CFRA”) and federal Family and Medical Leave Act (“FMLA”), and whistleblower complaints.

Plaintiff does not provide many details in her outline. She does state someone named Matt Morales and another manager yelled at her in a meeting and said “I smell a rat” after she complained about “mishandling of ballots, misuse of county funds, and a county worker altering his domestic partner’s and his pay stubs while covering [her] desk” during her medical leave. (Compl., Ex. A.) She alleges she was excluded from promotional opportunities after filing her complaint as well, particularly “Walk out of Class (WOOC).” (Compl., Ex. A.) This retaliation caused her emotional distress, which in turn “prompted” her disability. (Compl., Ex. A.)

Plaintiff alleges Defendant continued to mishandle her complaints and violate her rights during and after the investigation it conducted. Defendant threatened her with disciplinary action in connection with her workers’ compensation claim, despite her note from a physician. It also refused to transfer her to another department during its year-long investigation.

Ultimately, although Plaintiff states she experienced discrimination, harassment, and retaliation, she does not denominate any causes of action in the pleading or state the relief she seeks.

Currently before the Court is Defendant’s motion for judgment on the pleadings on the ground of failure to state facts sufficient to constitute a cause of action. Plaintiff opposes the motion.

II. Discussion

Defendant argues the facts alleged are insufficient to state claims based on the theories Plaintiff seemingly relies on. It also argues she failed to present it with an administrative claim prior to commencing this action.

A. Sufficiency of Allegations

In general, “a complaint must contain ‘[a] statement of the facts constituting the cause of action, in ordinary and concise language.’” (Davaloo v. State Farm Insurance Co. (2005) 135 Cal.App.4th 409, 415, quoting Code Civ. Proc., § 425.10, subd. (a)(1).) “This fact-pleading requirement obligates the plaintiff to allege ultimate facts that as a whole apprise[ ] the adversary of the factual basis of the claim.” (Davaloo, supra, 135 Cal.App.4th at p. 415 [internal quotation marks and citations omitted].) A motion for judgment on the pleadings made on the ground the complaint fails to state facts sufficient to constitute a cause of action tests whether the plaintiff alleges each ultimate fact essential to the cause of action asserted. (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 166; Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).)

Ordinarily, under rule 2.112 of the California Rules of Court, “[e]ach separately stated cause of action, count, or defense must specifically state: [¶] (1) Its number (e.g., ‘first cause of action’); [and] (2) Its nature (e.g., ‘for fraud’).” A plaintiff must also include a “demand for judgment for the relief to which [she] claims to be entitled.” (Code Civ. Proc., § 425.10, subd. (a)(2).) “If the recovery of money or damages is demanded, the amount demanded shall be stated.” (Ibid.) Because Plaintiff does not separately state any count in the complaint and include any demand for judgment for a certain kind of relief, it is exceedingly difficult to ascertain what claims she intended to assert. In conformity with these requirements, Plaintiff must better specify the nature of the claims she is asserting and the relief she seeks in connection therewith in any subsequent pleading.

With that said, for the purpose of a pleading challenge, the label on a cause of action does not control. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint” withstands the challenge. (Ibid.) Thus, here, and in accordance with how Defendant proceeds, the Court will consider whether Plaintiff states any cause of action notwithstanding her failure to identify the causes of action she is asserting.

Defendant argues Plaintiff fails to state claims for violation of the CFRA and FMLA, discrimination under other provisions of California’s Fair Employment and Housing Act (“FEHA”), discrimination under the Americans with Disabilities Act (“ADA”), whistleblower retaliation, and violation of the Labor Code. Defendant does not address whether Plaintiff states a claim for harassment under the FEHA.

1. CFRA

“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. Although Plaintiff does not allege she was terminated, fined, or suspended for taking leave, she does allege her superiors “used the issue of coverage for me when I was out on medical level [sic] in an attempt to create friction towards my opportunity to be included in promotional opportunities such as Walk out of Class (WOOC).” (Compl., Ex. A.) Defendant does not address whether this allegation is sufficient to plead an adverse employment action. Ultimately, because Plaintiff does not adequately allege all of these essential elements, she does not state a claim for retaliation under the CFRA.

2. FMLA

“The CFRA and the FMLA (29 U.S.C. § 2601 et seq.), which is ‘[its] federal counterpart,’ provide similar protections to employees needing family or medical leave.” (Neisendorf v. Levi Strauss & Co. (2006) 143 Cal.App.4th 509, 514, fn. 1, quoting Dudley, supra, 90 Cal.App.4th at p. 261.) As with the CFRA, a plaintiff may assert a claim against an employer for either interference with his or her rights under the FMLA or retaliation based on the exercise of those rights. (Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 919–20.) The elements of interference and retaliation claims under both statutes are essentially the same. (See ibid.)

“To 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.’” (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.) For the same reasons articulated with respect to the CFRA, and because Plaintiff does not allege she provided timely notice to Defendant, she does not allege facts sufficient to state an FMLA interference claim.

“To 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.’” (Dudley, supra, 90 Cal.App.4th at p. 261, quoting Hodgens v. General Dynamics Corp. (1st Cir. 1998) 144 F.3d 151, 161.) 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.

3. ADA

“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.

4. FEHA

“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 experience 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.

5. Whistleblower Retaliation

Defendant states it is not liable for a common law whistleblower retaliation claim and can only be held liable to the extent authorized by statute. It is true that a public employee cannot assert a Tameny claim against his or her public employer based on whistleblower retaliation. (Lloyd v. County of L.A. (2009) 172 Cal.App.4th 320, 330.) But this does not necessarily demonstrate no claim has been stated, particularly in light of California’s Whistleblower Protection Act (“WPA”) (which Defendant does not address). The WPA, particularly Government Code section “8547.8(c) imposes liability ‘in an action for damages’ on ‘any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a state employee’ for disclosing improper governmental activities or unsafe conditions.” (State Bd. of Chiropractic Examiners v. Super. Ct. (2009) 45 Cal.4th 963, 972.) “But this provision includes an important caveat: ‘However, any action for damages shall not be available…unless the injured party has first filed a complaint with the State Personnel Board…, and the board has issued, or failed to issue, findings pursuant to Section 19683.’” (Ibid., quoting Gov. Code, § 8547.8, subd. (c).) Plaintiff does not allege she complained to the State Personnel Board or otherwise allege facts about the complaints she made. There are also insufficient facts about the nexus between her purported complaints and an act constituting retaliation under the WPA. And so, no whistleblower retaliation claim has been stated.

6. Workers’ Compensation

Although not the focus of Plaintiff’s allegations, she does seem to allege Defendant improperly denied her workers’ compensation claim on the basis of a lack of evidence and also alleges it discriminated against her because she filed the claim. Defendant argues the Court has no jurisdiction over a claim of discrimination under Labor Code section 132a, which “extends certain civil rights protections to employees who are injured in the course of their employment.” (Dutra v. Mercy Medical Center Mt. Shasta (2012) 209 Cal.App.4th 750, 754.) “The statute makes it a misdemeanor for an employer to discharge or discriminate against an employee who files a claim for workers’ compensation.” (Id. at pp. 754–55.) “It also awards an employee who was subject to such discrimination reinstatement, reimbursement of lost wages, an increase in compensation, and expenses.” (Id. at p. 755, citing Lab. Code, § 132a, subd. (1).) But as for the latter civil remedy, 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. (Dutra, supra, 209 Cal.App.4th at p. 755.) Thus, to the extent Plaintiff intended to state a claim based on Labor Code section 132a, Defendant is correct that she has not and cannot do so.

B. Claim Presentation Requirement

Defendant also argues Plaintiff’s complaint is defective because she does not allege compliance with the claim-presentation requirement of the Government Claims Act. Ordinarily, before filing a civil action for damages against a public entity, a plaintiff must present an administrative claim to the entity that sets forth, among other things, “[a] general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.” (Gov. Code, §§ 910, 945.4.) If a plaintiff does not allege facts showing compliance or an excuse for noncompliance with the claim presentation requirement, his or her cause of action is subject to dismissal on the ground of failure to state facts sufficient to constitute a cause of action. (State of California v. Super. Ct. (2004) 32 Cal.4th 1234, 1243; accord Nasrawi v. Buck Consultants, LLC (2014) 231 Cal.App.4th 328, 338.) But this general claim-presentation requirement is displaced when there are more specific administrative procedures applicable to a particular statutory claim, such as a claim under the FEHA (Garcia v. L.A. Unified School Dist. (1985) 173 Cal.App.3d 701, 710–11) or the WPA (Cornejo v. Lightbourne (2013) 220 Cal.App.4th 932, 942), and the plaintiff must exhaust his or her administrative remedies in accordance with the more specific procedures. Defendant’s argument is not well-taken and is premature because the facts alleged are insufficient to show which claim presentation requirement, if any, applies under the circumstances here.

C. Conclusion

For the reasons set forth above, 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. Defendant’s motion for judgment on the pleadings is therefore GRANTED. The Court will prepare the order, and Plaintiff shall have 20 days from that signed order to file an amended pleading.

Even as a self-represented litigant, Plaintiff is still expected to comply with the law, including the California Rules of Court and Code of Civil Procedure, like any attorney appearing before this court. (See Kobayashi v. Super. Ct. (2009) 175 Cal.App.4th 536, 543.) The Court’s website contains a “Self-Help section” with resources for self-represented litigants and can be accessed at the following URL: http://www.scscourt.org/self_help.shtml.