Nina Johnson vs City of Santa Barbara

Case Number

23CV01612

Case Type

Hearing Date / Time

Fri, 09/15/2023 - 10:00

Nature of Proceedings

Case Management Conference; Demurrer

Tentative Ruling

TENTATIVE RULING:

 For all reasons discussed herein, the demurrer of defendant the City of Santa Barbara to plaintiff’s complaint is overruled. Defendant shall file and serve its answer to plaintiff’s complaint on or before September 29, 2023.

 

 Background:

 As alleged in the complaint filed in this action on April 14, 2023, plaintiff Nina Johnson (Johnson) was employed by defendant the City of Santa Barbara (the City) in the City Administrator’s Office from December 1998 until her resignation in 2022. (Complaint, ¶¶ 1, 17, 40.) As alleged in the complaint, during Johnson’s employment with the City, she was responsible for high visibility, high-level, and complex assignments on behalf of the City Administrator and City Council which involved directing interdepartmental teams, serving as the lead staff for numerous City Council committees, presenting a variety of complex issues on behalf of the City and regular interface and dialogue with community leaders. (Id. at ¶ 20.) Johnson received excellent performance reviews and support from community organizations. (Id. at ¶ 21.)

 

Johnson alleges that, despite her high-level responsibilities, the City misclassified Johnson with a non-executive position, gave Johnson an outdated title, and paid Johnson a salary that was incommensurate with her role (Complaint, ¶ 22.) Johnson’s male, non-Asian predecessor was paid at a higher rate and classified as an executive while having the same duties, responsibilities, and oversight as Johnson who was never classified as having an executive position. (Id. at ¶ 25.) Johnson was also paid less than a male non-Asian counterpart who worked for the City at the same time as Johnson and who had lesser responsibilities with no staff oversight or direct reports. (Id. at ¶ 26.) In addition, though Johnson performed significant executive functions, she was screened out of interviews and unable to attend career networking events due to her position title. (Id. at ¶ 27.)

 

After Johnson brought these issues to her managers in 2016, Johnson experienced a demotion for the remainder of her employment with the City. (Complaint, ¶ 29.) Johnson was subjected to blacklisting efforts and rumors in which the City made comments to City managers and recruiters not to hire Johnson. (Id. at ¶¶ 29, 34.) After Johnson submitted a reclassification request, the City removed half of Johnson’s long-time work responsibilities, added a new duplicate position in the office, and hired Matt Fore (Fore) for the position at the top salary step although Fore did not have any direct reports. (Id. at ¶ 30.) The City gave Fore half of Johnson’s work assignments and responsibilities. (Ibid.) The City also eliminated an analyst position reporting to Johnson which forced Johnson to perform the analyst’s duties even though the City added positions overall. (Id. at ¶ 31.) Johnson was excluded from meetings, cut out of work processes, denied access to staff assistance, given low-level duties, denied promotion and special assignment opportunities, and was made to report to a manager instead of the City Administrator and Assistant Administrator as she had during previous years. (Id. at ¶ 32.)

 

Johnson was further retaliated against when she sought clarity regarding the selection of a contractor for the art elements of an Underpass Project (the project) that were outside the scope of the project’s RFP. (Complaint, ¶ 35.) During a meeting on February 25, 2021, Johnson was accused of trying to derail the project because she expressed these concerns. (Id. at ¶ 36.) Johnson’s job duties were removed, and the City hired a Public Information Officer to take over Johnson’s duties. (Id. at ¶¶ 37, 38.)

 

After Johnson returned from running for public office in December 2021, it was communicated to Johnson that her few remaining job functions had been reassigned to other staff. (Complaint, ¶ 39.) The City’s response to Johnson raising issues about her pay grade caused Johnson to lose advancement opportunities, suffer a decline in health, and forced Johnson to resign in 2022. (Id. at ¶ 40.)

 

The complaint alleges eight causes of action: (1) violation of Government Code section 12900 et seq. (the California Fair Employment and Housing Act or FEHA) – harassment and/or discrimination based on gender; (2) violation of FEHA – harassment and/or discrimination based on race; (3) violation of FEHA – retaliation; (4) violation of FHA – wrongful constructive discharge; (5) violation of FEHA – failure to prevent discrimination, harassment, and retaliation; (6) violation of Labor Code section 1102.5 – whistleblower retaliation; (7) violation of Labor Code section 1197.5 – Equal Pay Act; and (8) wrongful constructive termination in violation of public policy.

 

On July 12, 2023, the City filed a demurrer to the first, second, third, fourth, fifth, sixth, and eighth causes of action alleged in the complaint on the following grounds: the third and fourth causes of action are uncertain; the first, second, third and eighth causes of action fail to allege facts sufficient to state a cause of action; and the fourth, fifth, and sixth causes of action are not pleaded with specificity. Johnson opposes the demurrer.

 

Analysis:

 

On demurrer, the court determines whether the complaint “alleges facts sufficient to state a cause of action under any legal theory.” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162; accord, Mathews v. Becerra (2019) 8 Cal.5th 756, 768.) “ ‘The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.) The court must accept as true all well-pleaded factual allegations but not “ ‘contentions, deductions or conclusions of fact or law….’ [Citation]”. (City of Dinuba v. County of Tulare (2007) 41 Cal. 4th 859, 865; Carloss v. County of Alameda (2015) 242 Cal. App. 4th 116, 123; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court “must also accept as true those facts that may be implied or inferred from those expressly alleged.” (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.) “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 [pleading] is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

 

(1) The City’s Demurrer to the First and Second Causes of Action:

 

The City demurs to the first and second causes of action for harassment and discrimination based on, respectively, gender and race in violation of FEHA on the grounds that Johnson has failed to allege with required specificity the circumstances and dates of the adverse employment actions to enable the City to determine if the action is time barred. The City further contends that Johnson has failed to specifically allege conditions that suggest a discriminatory motive or that Johnson’s gender and race were a substantial motivating factor.

 

Notwithstanding ambiguity in the manner in which the first and second causes of action alleged in the complaint are titled, it is the Court’s understanding that Johnson intends to allege claims for unlawful discrimination based on gender and race only and not claims for unlawful harassment. Under FEHA, it is unlawful for an employer to “refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or 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” based on the person’s race or gender. (Gov. Code, § 12940, subd. (a); see also Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373; Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1035–1036 [the discriminatory action must result in an “adverse employment action” that is “reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion”].)

 

“[T]he elements of a claim for employment discrimination in violation of section 12940, subdivision (a), are (1) the employee’s membership in a classification protected by the statute; (2) discriminatory animus on the part of the employer toward members of that classification; (3) an action by the employer adverse to the employee’s interests; (4) a causal link between the discriminatory animus and the adverse action; (5) damage to the employee; and (6) a causal link between the adverse action and the damage.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 (Mamou).) As the first and second causes of action rely upon statutory liability under the FEHA, they “must be pleaded with particularity ….” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)

 

In the complaint, Johnson has specifically pleaded adverse employment actions by the City which include the City misclassifying Johnson’s position, paying Johnson less than Johnson’s male and non-Asian counterparts, demoting and blacklisting Johnson, denying Johnson promotions, and removing Johnson’s job duties, among other things. Giving the complaint a reasonable interpretation, these purported actions would likely impair an employee’s job performance or prospects for advancement. The FEHA statutory scheme does not require Johnson to specifically plead the date of the alleged demotion or the specific position Johnson was demoted to. These are matters of evidentiary concern and not grounds for sustaining a demurrer which “tests the pleading alone, and not the evidence or the facts alleged.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) In addition, the City asserts that it “does not dispute that [Johnson] is a member of a protected class.” (Opp. at p. 6, l. 24.) Accordingly, at this stage of the proceedings, the allegations of the complaint are sufficient to plead that Johnson is a member of a protected class and that the City’s actions were adverse to Johnson’s interests.

 

In addition, though the City does not assert that the first and second causes of action are barred by any applicable statute of limitations, the Court notes that “ ‘ “[a] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]” [Citation.]’ [Citation.]” (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) The City cites no legal authority, and the Court is unaware of any, that would affirmatively require Johnson to plead the dates of each alleged adverse employment action undertaken by the City for statute of limitations purposes. The City offers no reasoned factual or legal argument to demonstrate whether the complaint is time barred based on the dates alleged in the complaint. Any ambiguities in this regard may be clarified during discovery. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

 

The City further contends that the complaint fails to allege facts that suggest a discriminatory motive. Johnson’s allegations that she was paid less than her male, non-Asian counterparts are sufficient to suggest a discriminatory motive. In addition, Johnson cannot be expected at this stage of the proceedings to directly know the City’s alleged reasons for taking the actions alleged in the complaint. (See Mamou, supra, 165 Cal.App.4th at p. 713 [proof of discriminatory animus and a causal link “is likely to depend on circumstantial evidence, since they consist of subjective matters only the employer can directly know, i.e., his attitude toward the plaintiff and his reasons for taking a particular adverse action”].) The City appears to acknowledge that Johnson “is not expected to plead facts beyond the scope of [her] knowledge in the absence of discovery.” (Opp. at p. 9, ll. 17-18.) In addition, the Court does not on demurrer consider whether or not Johnson can prove the allegation that the City acted with a discriminatory motive when it undertook the actions described in the complaint. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.)

 

For all reasons discussed above, Johnson has sufficiently pleaded facts that constitute a cause of action for employment discrimination under FEHA based on race and gender. Therefore, the Court will overrule the City’s demurrer to the first and second causes of action alleged in the complaint.

 

(2) The City’s Demurrer to the Fourth and Eighth Causes of Action

 

In the caption of the complaint, Johnson identifies a fourth cause of action for “Violation of FEHA-Retaliation”. In the body of the complaint, the fourth cause of action is titled “Violation of FEHA-Wrongful Constructive Discharge”. Notwithstanding the ambiguities created by Johnson’s apparent mislabeling of the fourth cause of action in the caption of the complaint, it is the Court’s understanding that Johnson intends to allege a fourth cause of action for wrongful constructive discharge. Johnson also alleges an eighth cause of action for wrongful constructive termination.

 

The City demurs to the fourth cause of action on the grounds that Johnson has failed to allege extraordinary and egregious conduct by the City, instead only alleging a rearranging of responsibilities or lack of promotion which the City characterizes as “statements of a longtime dissatisfied employee.” (Opp. at p. 7, ll. 24-25.) The City demurs to the eighth cause of action on the same grounds, and on the grounds that the complaint fails to allege that Johnson’s resignation was coerced by intolerable working conditions.

 

In the fourth cause of action for wrongful constructive discharge, Johnson alleges that the City created or permitted discrimination against Johnson due to Johnson’s gender and race, which Johnson alleges constitutes an intolerable working condition. As a result, Johnson resigned from her employment with the City. (See Compl., ¶¶ 75-76.) In the eighth cause of action for wrongful constructive termination in violation of public policy, Johnson alleges that the City’s constructive termination of Johnson violates public policy prohibiting discriminatory and retaliatory practices in the workplace.

 

“Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign…. As a result, a constructive discharge is legally regarded as a firing rather than a resignation….[T]he standard by which a constructive discharge is determined is an objective one—the question is ‘whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit.’ [Citations.] … [Moreover], [a] constructive discharge is the practical and legal equivalent of a dismissal—the employee’s resignation must be employer-coerced, not caused by the voluntary action of the employee or by conditions or matters beyond the employer’s reasonable control.… [A]n employer’s intent to create or purposefully maintain working conditions that are intolerable from the standpoint of a reasonable employee has been deemed sufficient for a constructive discharge because it insures the claim is employer-coerced. An employer’s actual knowledge of the existence of such conditions, and subsequent failure to remedy them, may constitute circumstantial evidence that the employer deliberately forced the employee to resign….[Accordingly], [i]n order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244-1251.)

 

A plaintiff may maintain an “action for wrongful discharge in cases in which the termination contravenes public policy.” (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 178; see also Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1205 [“[i]t is settled that an employer’s discharge of an employee in violation of a fundamental public policy embodied in a constitutional or statutory provision gives rise to a tort action”].) The provisions of the FEHA represent a policy against discrimination in employment which benefits the public. (Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1378; see also City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1160-1161 [FEHA’s policy against discrimination can support a common law wrongful discharge claim].)

 

In the complaint, Johnson alleges that, due to the City’s alleged discriminatory conduct, she was forced to resign. The City does not contend that Johnson has failed to allege its knowledge of the conduct described in the complaint or that Johnson has failed to allege that she notified the City of the purportedly discriminatory conduct. For reasons further discussed above, Johnson has sufficiently alleged claims for discrimination based on race and gender in violation of FEHA. Though the fourth and eighth causes of action may contain other pleading deficiencies which are not raised in the City’s demurrer, based on the allegations described above, Johnson has sufficiently alleged a claim of discrimination in violation of public policy that can form the basis of the wrongful discharge and termination claims alleged in the complaint. Therefore, for all reasons discussed above, the Court will overrule the City’s demurrer to the fourth and eighth causes of action alleged in the complaint.

 

(3) The City’s Demurrer to the Third, Fifth, and Sixth Causes of Action:

 

In the caption of the complaint, Johnson identifies a third cause of action for “Violation of FEHA-Hostile Work Environment/Constructive Discharge”. In the body of the complaint, the third cause of action is titled “Violation of FEHA-Retaliation”. Notwithstanding these additional ambiguities and for reasons further discussed above, it is the Court’s understanding that Johnson intends to allege a third cause of action for retaliation in violation of FEHA, and a fifth and sixth cause of action for, respectively, failure to prevent discrimination and retaliation in violation of FEHA, and whistleblower retaliation under Labor Code section 1102.5.

 

The City contends that Johnson has failed to specifically reference each event to a specific adverse action to permit the City to determine if any of the events alleged in the complaint are time-barred. The same analysis applies. The City fails to provide any reasoned legal authority that would require Johnson to allege specific dates for the adverse employment actions alleged in the complaint. Moreover, Johnson alleges dates and timeframes within which the purported adverse employment actions occurred, including the date on which Johnson was accused of derailing the project. The City offers no reasoned argument demonstrating that the complaint is time-barred based on the dates alleged in the complaint.

 

In addition, Johnson specifically alleges that she notified the City of the “issues” described in the complaint in 2016 and that thereafter, the City engaged in the adverse employment actions alleged in the complaint which are further discussed above, including actions purportedly taken in February and December 2021. For all reasons described above, these allegations are stated with sufficient specificity at the pleading stage and sufficiently apprise the City of allegedly discriminatory conduct that purportedly resulted in Johnson’s resignation. Therefore, for similar reasons and as the City does not demonstrate with reasoned argument whether the claims are time-barred, the Court will overrule the City’s demurrer to the third, fifth, and sixth causes of action alleged in the complaint.

 

Though the Court will overrule the City’s demurrer, to the extent Johnson intends to allege claims for harassment in violation of FEHA or another statute, Johnson will need to file a motion for leave to amend the present complaint. The motion may also request leave to correct any other ambiguities described herein.