Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Stacy McCrory vs County of Santa Barbara
Case No: 18CV01334
Hearing Date: Fri Nov 15, 2019 9:30

Nature of Proceedings: Motion for Summary Judgment/Summary Adjudication

TENTATIVE RULING: The motion for summary judgment of defendant County of Santa Barbara is granted. Judgment shall be entered in favor of defendant and against plaintiff. The parties shall bear their own costs.

BACKGROUND:

This is an action for wrongful discharge. In August 2015, plaintiff Stacy McCrory was hired by defendant County of Santa Barbara as Forensic Manager in the Department of Behavior Wellness. Plaintiff was subject to a one-year probationary period. On August 12, 2016, plaintiff resigned in lieu of termination after she was informed by her supervisor that she had not met the department’s performance standards and would not pass probation. During her employment, plaintiff made multiple complaints to her supervisors that the department was improperly accepting funds from the state of California by misrepresenting its status as a full service mental health facility. Plaintiff also suffered an emotional breakdown during her employment as the result of work-related stress. Plaintiff claims that she did not pass probation because she had a mental breakdown and she was a “whistleblower.”

On June 28, 2019, plaintiff filed her complaint against County for (1) discrimination based on disability in violation of FEHA, (2) discrimination based on medical condition in violation of FEHA, and (3) retaliation in violation of Labor Code Section 1102.5, the whistleblower statute. County now moves for summary judgment as to the entire action or, in the alternative, summary adjudication as to each of plaintiff’s three causes of actions. Plaintiff opposes the motion.

ANALYSIS:

Evidentiary Objections

“In granting or denying a motion for summary judgment . . . , the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” Code Civ. Proc. §437c, subd. (q).

Plaintiff objected to portions of the declarations of Celeste Andersen, Ole Behrendtsen, Pamela Fisher, Alice Gleghorn, Suzanne Grimmesey, Kristi Johnson, Chris Ribeiro, Ana Vicuna, Lindsay Walter, and Michael Youngdahl submitted in support of County’s motion for summary judgment. Most of the objected to statements played no part in the court’s ruling on County’s summary judgment motion and therefore the court declines to rule on every objection. As to those items that were relevant to the court’s determination and to which objections were asserted, the court rules:

1. Gleghorn Dec., ¶3. Overruled. The witness is competent to state whether plaintiff ever told her that she had a mental disability. Personal knowledge. Evid. Code §702.

2. Gleghorn Dec., ¶4. Overruled. The witness is competent to state whether plaintiff ever told her that she had an emotional breakdown. Personal knowledge. Evid. Code §702.

3. Gleghorn Dec., ¶6. Overruled. The witness is competent to state whether plaintiff ever told her that she was having difficulty doing her work because she had a mental or emotional condition. Personal knowledge. Evid. Code §702.

4. Vicuna Dec., ¶2. Overruled. The witness is competent to state whether plaintiff ever told her that she had a mental disability. Personal knowledge. Evid. Code §702.

5. Vicuna Dec., ¶3. Overruled. The witness is competent to state whether plaintiff ever told her that she had an emotional breakdown. Personal knowledge. Evid. Code §702.

6. Vicuna Dec., ¶5. Overruled. The witness is competent to state whether plaintiff ever told her that she was having difficulty doing her work because she had a mental or emotional condition. Personal knowledge. Evid. Code §702.

7. Johnson Dec., ¶15. Overruled. The witness is competent to state whether plaintiff obtained a decision from the EEO on the merits of her complaint. Personal knowledge. Evid. Code §702.

County objected to portions of the evidence submitted by plaintiff in opposition to County’s motion for summary judgment. Because most of the objected to statements played no part in the court’s ruling on County’s motion, the court declines to rule on the objections, with the exception of the following:

1. Cordes Dec., ¶2, Ex. A, McCrory Depo., p. 201:10-15. Overruled. Mr. Cordes is competent to authenticate plaintiff’s deposition transcript. Evid. Code §1401.

2. Cordes Dec., ¶2, Ex. A, McCrory Depo., p. 200:7-25. Overruled. Mr. Cordes is competent to authenticate plaintiff’s deposition transcript. Evid. Code §1401.

3. Youngdahl email, dated September 5, 2017 (County Ex. 9), and Cordes email, dated October 6, 2017 (County Ex. 10). Overruled. Both documents were included with County’s moving papers.

Motion for Summary Judgment/Adjudication

Any party may move for summary judgment in any action if it is contended that the action has no merit or there is no defense to the action. Code Civ. Proc. §437c, subd. (a). Where the moving party is a defendant, it has met its burden of showing that a cause of action has no merit if it has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. Code Civ. Proc. §437c, subd. (p)(2). Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or the asserted defense. Ibid. The plaintiff may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists, but, instead, shall set forth the specific facts showing that a triable issue of material facts exists as to that cause of action or defense. Ibid.

A party may also move for summary adjudication as to one or more claims within an action or one or more affirmative defenses if it is contended that the claim has no merit or there is no merit to the affirmative defense. Code Civ. Proc. §437c, subd. (f)(1). A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. Code Civ. Proc. §437c, subd. (f)(2). A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. Code Civ. Proc. §437c, subd. (f)(1).

Plaintiff’s first two causes of action are for employment discrimination based on a mental disability and/or medical condition. Under California’s Fair Employment and Housing Act (“FEHA”), it is unlawful “[f]or an employer . . . because of . . . mental disability [or] medical condition . . . to discharge [a] person from employment or . . . to discriminate against the person . . . in terms, conditions, or privileges of employment.” Gov. Code §12940, subd. (a). A “mental disability” within the meaning of FEHA includes “any mental or psychological disorder or condition, such as . . . emotional or mental illness . . . that limits a major life activity.” Gov. Code §12926, subd. (j)(1). The term “major life activity” is “broadly construed and . . . include[s] physical, mental, and social activities and working.” Gov. Code §12926, subd. (j)(1)(C).

To prevail on a cause of action for disability discrimination under FEHA, the plaintiff must show that he or she “(1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations; and (3) was subjected to an adverse employment action because of the disability or perceived disability.” Willis v. Superior Court (2011) 195 Cal.App.4th 143, 159-160. For purposes of its summary judgment motion, County assumes that plaintiff can establish the first two elements of her disability discrimination claims – that she suffered from a FEHA-defined disability and that she could perform her job duties with or without reasonable accommodation. However, County contends that the discrimination claims fail on the third element because plaintiff cannot show that she suffered an adverse employment action (i.e., did not pass probation) because of her disability or a perception that she was disabled.

The “because of” element of a disability discrimination claim requires proof that the employer knew of the disability. Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247-1248. “An adverse employment decision cannot be made ‘because of’ a disability when the disability is not known to the employer.” Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236. “Put simply, unless there is some evidence an employer knows an employee is suffering from a disability, it is impossible for an employee to claim he or she was discharged because of it or that an employer refused to accommodate the disability.” Pensinger v. Bowsmith, Inc. (1998) 60 Cal.App.4th 709, 722. An employer knows an employee has a disability when the employee tells the employer about his or her condition or when the employer otherwise becomes aware of the condition, such as through a third party or by observation. Faust v. California Portland Cement Company (2007) 150 Cal.App.4th 864, 887. While knowledge of a disability can be inferred from the circumstances, it will only be imputed to the employer “when the fact of disability is the only reasonable interpretation of the known facts.” Brundage, supra, at 237 (emphasis added). “Vague or conclusory statements revealing an unspecified incapacity” are insufficient to establish knowledge on the part of the employer. Ibid.

In the present case, plaintiff alleges that she had an “emotional breakdown” during her employment because of job-related stress, anxiety, and depression. (Youngdahl Dec., ¶2, Ex. 3, Plaintiff’s Responses to Special Interrogatories, Set One, No. 9.) Plaintiff asserts that her emotional breakdown was a mental disability or medical condition as defined by FEHA and that County was motivated to terminate her because of her breakdown. (Youngdahl Dec., ¶21, Ex. 4, Plaintiff’s Responses to Employment Form Interrogatories, No. 202.1, subd. (c).) Plaintiff acknowledges that she did not tell her immediate supervisor, Ana Vicuna, or the Director of the County Department of Behavior Wellness, Alice Gleghorn, that she was having, or had, an emotional breakdown (Youngdahl Dec., ¶3, Ex. 2, McCrory Depo., pp. 202:21-206:17; 209:1-11), but claims that County knew she had a mental disability based on the following:

● Plaintiff repeatedly told Ms. Vicuna and Ms. Gleghorn that she was “struggling and not doing well,” that she was “working too many hours and unable to keep up with the demands of her job,” and that she “wasn’t sleeping well.” (Youngdahl Dec., ¶21, Ex. 4, Plaintiff’s Responses to Employment Form Interrogatories, No. 204.6, subd. (c).)

● Plaintiff was unable to go to work and called in sick five or six times because of her emotional condition. (Youngdahl Dec., ¶3, Ex. 2, McCrory Depo., p. 201:10-15.)

● Plaintiff cried at work on occasion and broke down once in a manager’s meeting. (Youngdahl Dec., ¶21, Ex. 4, Plaintiff’s Responses to Employment Form Interrogatories, No. 204.6, subd. (c).)

● Staff regularly commented to plaintiff that she was “withering away and needed to eat.” (Youngdahl Dec., ¶21, Ex. 4, Plaintiff’s Responses to Employment Form Interrogatories, No. 204.6, subd. (c).)

● Plaintiff told Ms. Gleghorn that she needed more support because she was stressed. (Youngdahl Dec., ¶3, Ex. 2, McCrory Depo., p. 205:2-6.)

● Plaintiff was prescribed Lexapro for depression and anxiety and received psychotherapy for about three months in 2016. (Youngdahl Dec., ¶3, Ex. 2, McCrory Depo., p. 200:7-25.)

Plaintiff contends that the only reasonable inference one could drawn from the above facts is that she was suffering from a mental disability. The court disagrees. As previously noted, plaintiff never told Ms. Vicuna or Ms. Gleghorn that she was having, or had, a mental breakdown or that she was suffering from a mental or psychological condition that was making it difficult for her to do her work. (Youngdahl Dec., ¶3, Ex. 2, McCrory Depo., pp. 202:21-206:17; 209:1-11; Vicuna Dec., ¶¶ 2, 3; Gleghorn Dec., ¶¶ 3, 4.) Plaintiff also never told Ms. Vicuna or Ms. Gleghorn that she was taking medication for depression or that she had received psychotherapy treatment. (Ibid.) All plaintiff said was that she was stressed by her job and that she needed help getting her work done. (Vicuna Dec., ¶5; Gleghorn Dec., ¶6.) On the five or six days that she was unable to go to work because of her emotional condition, plaintiff left text messages with Ms. Vicuna that she was sick, but she did not say anything about an emotional breakdown that was preventing her from going to work. (Youngdahl Dec., ¶3, Ex. 2, McCrory Depo., pp. 201:10-202:16.) Plaintiff did not disclose to Ms. Vicuna or Ms. Gleghorn that she was having a mental breakdown because she was on probation and she was concerned that if she told them more, she would be seen as weak and unable to do the job. (Youngdahl Dec., ¶3, Ex. 2, McCrory Depo., pp. 205:10-206:6; 214:20-215:9; 363:11-18; 364:21-366:12.)

The undisputed facts in this case are similar to other disability discrimination cases where the court sustained a summary judgment because the employer did not know about the employee’s disability. In Avila v. Continental Airlines, Inc., supra, 165 Cal.App.4th 1237, the plaintiff brought an action against his former employer alleging that he was discharged from his employment in violation of FEHA. The plaintiff suffered from acute pancreatitis and was fired for excessive absences. The trial court granted summary adjudication on the plaintiff’s FEHA claims and the court of appeal affirmed, holding that the plaintiff had failed to raise a triable issue as to whether the employer knew that he was disabled when it made the decision to fire him. The plaintiff provided two medical forms to his employer stating that he had been hospitalized, but the forms were insufficient to put the employer on notice that the employee suffered from a disability because the forms did not specify the nature of the plaintiff’s illness, nor did they indicate that the plaintiff required any restrictions or accommodations regarding his work activities. Id., at 1248. The fact that the plaintiff told numerous co-workers that he had pancreatitis was also insufficient to show that management was on notice that he suffered from a disability. Id., at 1250.

Likewise, in Brundage v. Hahn, supra, 57 Cal.App.4th 228, summary judgment for an employer was affirmed on a FEHA discrimination claim because the employer did not know the plaintiff suffered from a mental disability when it terminated her. To prove that her employer had notice that she suffered from a manic-depressive disorder that caused her to miss work, the plaintiff submitted copies of her leave requests for medical appointments. However, the court found that the leave requests were insufficient to show that the employer had knowledge of plaintiff’s mental disorder or condition because “[n]one of the documents even hinted at any medical disability.” Id., at 237. As the court explained:

“An adverse employment decision cannot be made ‘because of” a disability, when the disability is not known to the employer. Thus, in order to prove [a discrimination] claim, a plaintiff must prove the employer had knowledge of the employee’s disability when the adverse employment decision was made. [Citations.] While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts.”

Id., at 237-238 (emphasis added).

See also, Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1168 (summary judgment for employer affirmed where plaintiff returned to work from medical leave without restrictions and documents disclosed no information about her medical condition or medications); Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1008 (grant of summary judgment on FEHA claim affirmed where no evidence that decision makers who reduced plaintiff’s status to part-time knew he was HIV-positive); Pensinger v. Bowsmith, Inc. (1998) 60 Cal.App.4th 709, 724-725, disapproved on other grounds by Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6 (employee’s complaints of “trouble” or “problems” with reading were not obvious manifestations of a learning disability and employer had no reason to know the plaintiff suffered from a mental disability under FEHA).

In her opposition, plaintiff acknowledges that she never told Ms. Vicuna or Ms. Gleghorn that she was having an emotional breakdown or that she was having difficulty doing her work because of a mental disability. (Youngdahl Dec., ¶3, Ex. 2, McCrory Depo., pp. 202:21-206:17; 209:1-11.) Rather, plaintiff contends that Ms. Vicuna and Ms. Gleghorn must have known that she had a mental disability based on the circumstances, as well as their training and experience. (Opp., p. 17:11-25.) Plaintiff repeatedly told them that she was under stress, that she was working too many hours, that she was not sleeping well, and that she needed help doing her job. (Youngdahl Dec., ¶21, Ex. 4, Plaintiff’s Responses to Employment Form Interrogatories, No. 204.6, subd. (c); ¶3, Ex. 2, McCrory Depo., p. 205:2-6.) However, as the above cases make clear, telling County that she was stressed by her workload and that she needed support to keep up with the demands of her job is insufficient to impute knowledge to County that plaintiff had a mental disorder. A reasonable alternative explanation for plaintiff’s complaints was that she was simply upset or frustrated about her job, not that she had a disability. Accordingly, because there is no evidence that County was aware of plaintiff’s mental disability at the time she was discharged, County is entitled to judgment on plaintiff’s first and second causes of action for disability discrimination.

Plaintiff’s third cause of action alleges that she was retaliated against for being a “whistleblower,” in violation of state law. Labor Code Section 1102.5, subdivision (b), provides:

“An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, . . . if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.”

County contends that plaintiff’s third cause of action fails because plaintiff did not exhaust her internal administrative remedies. “When a . . . public entity establishes an internal grievance mechanism, . . . failure to exhaust those internal remedies precludes any subsequent private civil action.” Palmer v. Regents of University of California (2003) 107 Cal.App.4th 899, 904. An administrative remedy is exhausted “only upon termination of all available, nonduplicative administrative review procedures.” Coachella Valley Mosquito & Vector Control District v. California Public Employment Relations Board (2005) 35 Cal.4th 1072, 1080 (internal quotes omitted); see also, Jonathan Neil & Associates, Inc. v. Jones (2004) 22 Cal.App.4th 917, 933 (exhaustion requires agency decision of “entire controversy”); Bleeck v. State Board of Optometry (1971) 18 Cal.App.3d 415, 432 (exhaustion requires “a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings”).

County’s internal administrative process required plaintiff to file a complaint with the County Equal Employment Opportunity Office (“EEO”). (Youngdahl Dec., ¶5, Ex. 1, County Civil Service Rules, Rule 1304.) The EEO was then required to “perform an investigation and file a factual report with the [Civil Service] Commission within ninety (90) days.” (Ibid.) If plaintiff disagreed with the EEO report, she could “pursue an appeal directly to the Civil Service Commission.” (Ibid.) Assuming plaintiff appealed to the Civil Service Commission, she would have the right to discovery from County and an evidentiary hearing. (Youngdahl Dec., ¶5, Ex. 1, County Civil Service Rules, Rules 1303, 1311.) If plaintiff prevailed at the hearing, the Commission had the authority to restore plaintiff to her previous position “with full back pay for time lost” and “attorney fees.” (Youngdahl Dec., ¶5, Ex. 1, County Civil Service Rules, Rule 1321.) If plaintiff was dissatisfied with the Commission’s decision, she had the right to seek judicial review by filing a petition for writ of mandate. (Youngdahl Dec., ¶5, Ex. 1, County Civil Service Rules, Rule 1324.)

Five months after her employment ended, plaintiff requested that the EEO investigate the circumstances of her separation, claiming that she was separated in violation of Labor Code Section 1102.5. (Johnson Dec., ¶3, Ex. 5, Cordes letter, dated 1-18-17.) On August 4, 2017, Kristi Johnson, the EEO Manager, met with plaintiff for the purpose of conducting an EEO intake interview to learn the details of plaintiff’s whistleblower claim. (Johnson Dec., ¶12.) In September 2017, the EEO temporarily suspended its investigation of plaintiff’s claim while County and plaintiff discussed possibly waiving the necessity of an EEO investigation. (Johnson Dec., ¶13; Youngdahl Dec., ¶7, Ex. 9, email, dated 9-5-17.) Before the discussions concluded, plaintiff filed a government claim with County on November 3, 2017, alleging that she had been terminated because she was a whistleblower. (Youngdahl Dec., ¶10, Ex. 11, Claim Against Public Entity, dated 11-3-17.) Plaintiff also alleged that County had indicated that it “would not require [her] to exhaust her administrative remedies.” (Ibid.) In response to the government claim, County Counsel sent an email to plaintiff’s counsel on December 15, 2017, stating, in relevant part:

“The purpose of this email is to ensure that we have no misunderstanding going forward regarding any representations that I allegedly made in prior conversations with you regarding the County’s position with respect to Ms. McCrory’s exhaustion of administrative remedies. The Claim that you filed on Ms. McCrory’s behalf last month asserted in part that I had ‘indicated that County would not require Claimant to exhaust any internal remedies which may exist prior to bringing this claim, and that the January 18, 2017 notice tolled any limitations periods that would apply to this notice under Government Code §910.’ That assertion was inaccurate.”

(Youngdahl Dec., ¶15, Ex. 12, email, dated 12-15-17.)

County Counsel stated further:

“To be clear, the County’s position has been and remains that Ms. McCrory had available to her, and was required to exhaust, internal remedies offered by the County’s EEO Office and Civil Service Commission (which potentially could require her to also exhaust her judicial remedies depending on the outcome) before she could seek damages in a civil action under Labor Code section 1102.5. By filing her Claim, Ms. McCrory has voluntarily abandoned pursuing those County internal remedies and, accordingly, any cause of action she asserts under Labor Code section 1102.5 should be barred for failure to exhaust her administrative remedies.”

(Ibid.)

Neither plaintiff nor her counsel ever informed County that she desired to complete the EEO investigation or County’s internal administrative process. (Youngdahl Dec., ¶19.) On March 15, 2018, plaintiff filed her civil complaint in this action. (Complaint for Damages, filed 3-15-18.)

Plaintiff claims there are triable issues of fact whether County had agreed to waive its internal administrative remedies and/or whether County should be estopped from requiring plaintiff to have exhausted its internal administrative remedies. The uncontradicted evidence, however, does not support plaintiff’s contention. First, there is no evidence that County agreed to waive the necessity of an EEO investigation or any other internal administrative process. The EEO investigation of plaintiff’s claims was only temporarily suspended while the parties negotiated a possible agreement to waive the necessity of completing the investigation. (Johnson Dec., ¶13; Youngdahl Dec., ¶7, Ex. 9, email, dated 9-5-17.) On November 3, 2017, before any agreement was reached, plaintiff filed her government claim, alleging that had been separated from employment because she is disabled and a whistleblower. (Youngdahl Dec., ¶10, Ex. 11, Claim Against Public Entity, dated 11-3-17.) Plaintiff claims that County “called off the administrative process” (Opp., p. 22:23-25), but the evidence is just the opposite. County responded to plaintiff’s government claim by reiterating that she needed to exhaust her administrative remedies before pursuing a civil action. (Youngdahl Dec., ¶15, Ex. 12, email, dated 12-15-17.)

Second, estoppel requires that County either negligently or intentionally caused plaintiff to fail to comply with its administrative remedies. See, J. H. McKnight Ranch, Inc. v. Franchise Tax Board (2003) 110 Cal.App.4th 978, 991 (“[A] government agency that leads a private party to inaction through correspondence and verbal assurances concerning the resolution of a dispute may be estopped from asserting failure to comply with administrative claim procedures as a defense.”) Here, there is no evidence that County misled plaintiff regarding the need to exhaust its internal grievance procedures. In August 2017, the EEO commenced an internal investigation of plaintiff’s claims and then suspended the process while the parties negotiated whether the investigation would be waived. (Johnson Dec., ¶¶ 12, 13; Youngdahl Dec., ¶7, Ex. 9, email, dated 9-5-17.) Without an agreement ever having been reached, plaintiff submitted her government claim to County. (Youngdahl Dec., ¶10, Ex. 11, Claim Against Public Entity, dated 11-3-17.) While it appeared to County that plaintiff had abandoned the administrative process, there is nothing County said or did that prevented plaintiff from continuing the EEO investigation.

The decision in Terris v. County of Santa Barbara (2018) 20 Cal.App.5th 551 is analogous to the present case. There, a former Santa Barbara County employee brought a wrongful termination and discrimination action against the county. The employee acknowledged that she did not file an EEO complaint before she filed her civil action, which alleged, among other things, that she had been retaliated against in violation of Labor Code Section 1102.5 after making lawful complaints against the county. The trial court granted the county’s motion for summary judgment and the court of appeal affirmed because the employee had failed to exhaust her administrative remedies. In summarizing its holding, the court stated:

“[W]here an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act. [Citation.] Administrative remedies include internal grievance procedures provided by the public entity. [Citation.] County employees must exhaust internal administrative remedies that are provided in county civil service rules. [Citation.] Terris was a County employee subject to the County’s Civil Service Rules.”

Id., at 555 (internal quotes omitted).

Here, it is undisputed that plaintiff never obtained a decision from the EEO on the merits of her complaint. (Johnson Dec., ¶15.) Plaintiff asserts that no purpose would have been served by completing the process (Opp., p. 25:5-14), but this is pure speculation and unsupported by any facts. Because she did not exhaust County’s internal remedies for her whistleblower claim, plaintiff’s third cause of action for violation of Labor Code Section 1102.5 fails as a matter of law.

Based on the foregoing, the court will grant County’s motion for summary judgment. Judgment shall be entered in favor of County and against plaintiff. The court does not find that plaintiff’s FEHA claims were frivolous or brought in bad faith and therefore the parties shall bear their own costs. Terris, supra, at 560.