Hyelim Cho vs County of Ventura et al

Case Number

23CV01752

Case Type

Hearing Date / Time

Mon, 10/23/2023 - 10:00

Nature of Proceedings

Demurrer to First Amended Complaint

Tentative Ruling

Hyelim Cho v. County of Ventura, et al. 

Case No. 23CV01752

           

Hearing Date: October 23, 2023                                                         

HEARING:              Demurrer of Defendants to First Amended Complaint

ATTORNEYS:        For Plaintiff Hyelim Cho: Gregory W. Smith, Diana Wang Wells, Law Offices of Gregory W. Smith, LLP; Boris Koron, Daniel J. Podolsky, Koron & Podolsky, LLP

                                    For Defendants County of Ventura, Blake D. Heller, Miles Weiss, Lisa O. Lyytikainen, Andrew Sullivant, and Rachelle H. Dean: Elizabeth T. Arce, Dana L. Segal, Liebert Cassidy Whitmore  

                                   

TENTATIVE RULING:

The demurrer of defendants County of Ventura, Blake D. Heller, Miles Weiss, Lisa O. Lyytikainen, Andrew Sullivant, and Rachelle H. Dean to the third cause of action (harassment) of plaintiff Hyelim Cho’s first amended complaint is sustained with leave to amend. Plaintiff shall file and serve a second amended complaint on or before November 7, 2023.

Background:

As alleged in plaintiff Hyelim Cho’s first amended complaint (FAC):

On September 7, 2021, plaintiff Cho was hired by defendant County of Ventura (County) as a Deputy District Attorney III. (FAC, ¶ 14.) On March 2022, Cho received a merit raise. (Ibid.)

On July 6, 2022, Cho informed County’s management that she had a high-risk pregnancy and requested workplace accommodations. (FAC, ¶ 15.)

On July 13, 2022, defendants issued Cho a negative performance evaluation containing numerous “Needs Improvement” ratings, as a result of which Cho’s probationary period was extended by the maximum number of hours it could have been extended for approximately six months. (FAC, ¶ 16.) (Note: In the FAC, “defendants” are defined as defendants County, Blake D. Heller, Miles Weiss, Lisa O. Lyytikainen, Andrew Sullivant, and Rachelle H. Dean, collectively. (FAC, ¶ 8.) Unless otherwise indicated, the use of “defendants” here follows that same usage, and thus without reference to any particular defendant.) Cho immediately protested this evaluation. (FAC, ¶ 16.) Within 30 minutes after issuing Cho the negative performance evaluation on July 13, defendants placed Cho on unpaid leave claiming her work restrictions could not be accommodated. (FAC, ¶ 17.)

On August 1, 2022, Cho was permitted to return to work with workplace accommodations. (FAC, ¶ 18.)

On October 31, 2022, Cho received an amended performance evaluation including new and different reasons for her “Needs Improvement” ratings. (FAC, ¶ 19.) All the reasons provided by defendants to substantiate the “Needs Improvement” ratings were pretext to its discriminatory or retaliatory motive. (Ibid.) Defendants’ handling of Cho’s performance evaluations and probation extension was against policy and the applicable Memorandum of Understanding (MOU). (Ibid.) Almost immediately after receiving the amended negative performance evaluation, Cho complained that defendants’ conduct towards her was in violation of the law. (FAC, ¶ 20.)

On December 20, 2022, County terminated Cho’s employment because of her pregnancy, pregnancy related disability, request for workplace accommodations, or complaining about unlawful employment practices, including pregnancy discrimination. (FAC, ¶ 21.)

On April 20, 2023, Cho filed her original complaint in this action. On June 13, 2023, without any response having been filed, Cho filed her FAC. The FAC asserts six causes of action: (1) pregnancy discrimination; (2) disability discrimination; (3) harassment based upon pregnancy disability; (4) retaliation; (5) failure to take reasonable steps to prevent harassment, discrimination, or retaliation; and (6) retaliation in violation of Labor Code section 1102.5. The first five causes of action are all asserted as violations of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).

On September 7, 2023, defendants filed their demurrer to the third cause of action (harassment) of the FAC.

The demurrer is opposed by Cho.

Analysis:

“ ‘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.)

Cho’s third cause of action is for harassment as a violation of FEHA.

“It is an unlawful employment practice, unless based upon a bona fide occupational qualification …: [¶] … [¶] (j)(1) For an employer …, or any other person, because of … physical disability, …, medical condition, …, [or] sex, … to harass an employee …. Harassment of an employee … other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. … An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.” (Gov. Code, § 12940, subd. (j)(1).)

“An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” (Gov. Code, § 12940, subd. (j)(3).)

“For purposes of this subdivision, ‘harassment’ because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.” (Gov. Code, § 12940, subd. (j)(4)(C).)

Defendants argue that a claim for harassment is not stated because there are no specifics of the harassment alleged either as to the nature of the actions or inactions of defendants or as to any particular defendant. Cho argues that evidentiary allegations are not required and that the “personnel management decisions” alleged are sufficient, citing Roby v. McKesson Corp. (2009) 47 Cal.4th 686 (Roby).

In Roby, the plaintiff worked for the defendant corporation for 25 years. (Roby, supra, 47 Cal.4th at p. 694.) Starting three years before the plaintiff was terminated, the plaintiff started having panic attacks that temporarily, and on short notice, restricted the plaintiff’s ability to perform the job. (Ibid.) The corporation subsequently adopted a complex attendance policy that worked to the disadvantage of employees, like the plaintiff, who had disabilities or medical conditions that might require several unexpected absences in close succession. (Id. at p. 695.) The plaintiff’s supervisors were aware that the plaintiff suffered from these unpredictable panic attacks and that many, if not all, of the plaintiff’s absences without notice resulted from this condition. (Ibid.) This problem was compounded by the plaintiff’s medication that caused her body to produce an unpleasant odor and by plaintiff’s nervous disorder that resulted in open sores in her arm. (Ibid.)

The plaintiff’s supervisor in Roby made negative comments in front of other workers about the plaintiff’s body odor, although the supervisor knew the medication was causing the odor. (Roby, supra, 47 Cal.4th at p. 695.) The supervisor made offensive remarks about the plaintiff’s appearance and openly ostracized the plaintiff in the office. (Ibid.) The supervisor also ignored the plaintiff at staff meetings, overlooked the plaintiff when handing out small gifts given to other employees on the supervisor’s staff, and spoke to the plaintiff in front of others in various demeaning ways. (Ibid.) The plaintiff’s employment was eventually terminated based upon the plaintiff’s absences. (Id. at p. 697.)

The plaintiff in Roby sued the corporation and the supervisor. (Roby, supra, 47 Cal.4th at p. 697.) The plaintiff asserted claims against the corporation for wrongful termination in violation of public policy, discrimination in violation in FEHA, and failure to accommodate in violation of FEHA. (Ibid.) The plaintiff also asserted a claim for harassment in violation of FEHA against both the corporation and the supervisor. (Ibid.) At trial, the jury returned a verdict in favor of the plaintiff and against both the corporation and the supervisor. (Id. at pp. 698-699.) Because of confusion in the special verdict form, a dispute arose as to whether, and to what extent, damages overlapped and were improperly double counted. (Id. at pp. 699-700.) On appeal, the court upheld the highest of three awards for noneconomic damages in the special verdict but reversed the jury’s finding on harassment on the basis of insufficient evidence. (Id. at p. 700.)

On review in the Supreme Court, the Roby court stated in the context of the harassment claim:

“[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace. This conclusion is consistent with our analysis of the FEHA in [Reno v. Baird (1998) 18 Cal.4th 640 (Reno)]. There, we said: ‘ “[H]arassment 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.... [¶] ... [¶] ... [C]ommonly necessary personnel management actions ... do not come within the meaning of harassment.... These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment.... This significant distinction underlies the differential treatment of harassment and discrimination in the FEHA.” ’ [Fn., citation.]” (Roby, supra, 47 Cal.4th at p. 707.)

“The FEHA’s distinction between discrimination and harassment does not mean that harassment claims are relegated to a lower status. The FEHA does not differentiate in terms of wrongfulness between discrimination and harassment; both are ‘unlawful employment practice[s]’ (§ 12940), and in both cases an aggrieved employee can obtain full compensation for any resulting injury. In addition, we can discern no reason why an employee who is the victim of discrimination based on some official action of the employer cannot also be the victim of harassment by a supervisor for abusive messages that create a hostile working environment, and under the FEHA the employee would have two separate claims of injury.” (Roby, supra, 47 Cal.4th at p. 707.)

“In [Miller v. Department of Corrections (2005) 36 Cal.4th 446 (Miller)] the immediate source of the plaintiffs’ alleged injuries was the offensive sex-biased message that the supervisor conveyed, not a demotion or an unfavorable job assignment, and therefore the plaintiffs’ cause of action was for harassment, not for discrimination. Nevertheless, official employment actions constituted the evidentiary basis of the harassment cause of action, because the supervisor used those official actions as his means of conveying his offensive message. Our decision in Miller is wholly consistent with Reno, supra, 18 Cal.4th at pages 645–647, …, because it confirms that harassment is generally concerned with the message conveyed to an employee, and therefore with the social environment of the workplace, whereas discrimination is concerned with explicit changes in the terms or conditions of employment. Miller, however, makes clear that in some cases the hostile message that constitutes the harassment is conveyed through official employment actions, and therefore evidence that would otherwise be associated with a discrimination claim can form the basis of a harassment claim. Moreover, in analyzing the sufficiency of evidence in support of a harassment claim, there is no basis for excluding evidence of biased personnel management actions so long as that evidence is relevant to prove the communication of a hostile message.” (Roby, supra, 47 Cal.4th at p. 708.)

“Miller, however, makes clear that some official employment actions done in furtherance of a supervisor’s managerial role can also have a secondary effect of communicating a hostile message. This occurs when the actions establish a widespread pattern of bias. [Citation.] … Moreover, acts of discrimination can provide evidentiary support for a harassment claim by establishing discriminatory animus on the part of the manager responsible for the discrimination, thereby permitting the inference that rude comments or behavior by that same manager was similarly motivated by discriminatory animus.” (Roby, supra, 47 Cal.4th at p. 709.)

Thus, Roby establishes that evidence of personnel management decisions may, in appropriate cases, support a claim for harassment. More broadly, Roby establishes that, although harassment and discrimination are independent sources of liability, evidence of workplace conduct may overlap in supporting one or both theories of liability. However, Roby does not generally support the proposition that evidence of workplace discrimination is by itself sufficient to establish harassment. Thus, in the pleading context here, it is necessary to identify more specifically what is required to allege a claim for harassment.

“Plaintiffs’ claim[] for harassment … [is] founded on the provisions of FEHA and [is] based exclusively on that statutory scheme since FEHA is not a codification of preexisting common law. [Citation.] Accordingly, we apply the general rule that facts in support of each of the requirements of a statute upon which a cause of action is based must be specifically pled.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.)

“To prevail on a harassment claim under FEHA, a plaintiff must produce evidence they were subjected to ‘offensive comments or other abusive conduct’ that is (1) based on a ‘protected characteristic’ (here, a claimed disability) and (2) ‘sufficiently severe or pervasive as to alter the conditions of [his] employment.’ [Citation.]” (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 736.)

“ ‘The law prohibiting harassment is violated “[w]hen 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.” ’ ” [Citations.]’ [Citation.] The determination ‘is ordinarily one of fact.’ [Citation.] All harassment claims require severe or pervasive conduct. [Citation.] The words ‘severe’ and ‘pervasive’ have no peculiar meanings under the law. The adjective ‘severe’ is defined as ‘strongly critical and condemnatory’ or ‘inflicting pain or distress.’ [Citation.] The verb ‘pervade’ is defined as ‘to become diffused throughout every part of.’ [Citation.]” (Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 38.)

“Actionable harassment consists of more than ‘annoying or “merely offensive” comments in the workplace,’ and it cannot be ‘occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.’ [Citation.] Whether the harassment is sufficiently severe or pervasive to create a hostile work environment ‘must be assessed from the “perspective of a reasonable person belonging to [same protected class as] the plaintiff.” ’ [Citation.] In making this assessment, we consider several factors, including ‘ “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” ’ [Citation.]” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 940.)

Cho’s complaint is insufficient to allege a claim for harassment in several ways. First, and most basically, no severe or pervasive workplace conduct is alleged so as to show the existence of an abusive working environment. Indeed, the allegations as now pleaded show that Cho was promptly (but illegally) removed from the workplace only a few days after requesting a workplace accommodation. There are no allegations of any workplace conduct following Cho’s return to the workplace a couple of weeks later until receiving an amended performance evaluation modifying her prior performance evaluation. The particulars of the performance evaluation are not alleged. There are no allegations of any workplace conduct following that evaluation until Cho’s employment was terminated almost two months later. These few alleged incidents do not sufficiently demonstrate a hostile working environment.

Second, and compounding the first issue, there are no allegations of conduct, or participation in any conduct, by any individual defendant. In order to assert liability against an individual defendant, Cho must allege sufficient facts connecting that individual defendant to the conduct causing the harm. Generic allegations of conduct by “defendants” are insufficient.

While the court generally agrees that Cho is not required to plead the complaint with evidentiary detail, in order to meet the pleading requirements for a claim of harassment, there must be sufficient, specific facts alleged which demonstrate the hostile working environment caused by the improper conduct of specific persons, and otherwise provide sufficient facts to demonstrate the liability for that conduct by each defendant against whom liability is asserted.

Accordingly, the demurrer of defendants to the third cause of action will be sustained. Because this is the first demurrer on which the court has ruled, the demurrer will be sustained with leave to amend.