PAULA MANNING VS COUNTY OF LOS ANGELES, A PUBLIC ENTITY

Tentative Rulings

Case Number: *******7328 Hearing Date: June 29, 2022 Dept: 39

Paula Manning v. County of Los Angeles

Case No. *******7328

Demurrer

BACKGROUND

Plaintiff Paula Manning (“Plaintiff”) filed this action against the County of Los Angeles (the “County” or “Defendant”) asserting causes of action for retaliation under Labor Code section 1102.5, discrimination under Government Code section 12940, retaliation under government code section 12940, and failure to investigate and prevent harassment, discrimination and retaliation under Government Code section 12940. Defendant demurs to the first amended complaint, which Plaintiff opposes. The Court overrules the demurrer with respect to the cause of action for retaliation under Labor Code section 1102.5. The Court sustains the demurrer with respect to the Fair Employment and Housing Act (“FEHA”) claims without leave to amend.

PLAINTIFF’S ALLEGATIONS

Plaintiff is an African-American woman who was hired by the Los Angeles County Probation Department in June 2000. (First Amended Complaint, 9.) From February 2001 to March 2005, Plaintiff worked in the private sector, and then returned to the County to work in the Department of Consumer Affairs. (Id., 10.) In November 2011, Plaintiff was promoted to Supervising Deputy Probation Officer and assigned to work in the County’s Internal Affairs Bureau (“IA”) in charge of investigating use of force cases. (Id., 11.) On or about March 23, 2017, Plaintiff investigated a case involving misuse of force and inaccurate documentation against multiple probation officers. (Id., 12.) In or about September 2017, the case was substantiated, and the County terminated each of the subjects of the investigation for misconduct. (Id., 13.)

On or about February 11, 2019, Plaintiff received an email from unnamed representatives of the County informing her that she had been named as a witness in a matter under investigation by the Federal Bureau of Investigation (the “FBI”), concerning alleged witness tampering by another County employee and misconduct by senior County management employees. (Id., 14.) Plaintiff was interviewed by the FBI concerning “illegal workplace conditions, mistreatment, abuse of children, and witness intimidation in the Probation Department.” (Id., 15.) Plaintiff alleges that “her interview and testimony was conducted in a confidential settling and that Probation Department leadership was, at the time, not aware of her role as a witness in the FBI investigation.” (Ibid.)

On October 8, 2019, Plaintiff and another investigator, Daniel Rivera were promoted to Supervising Deputy Probation Officer (“SDPO”). (Id., 16.) Like Plaintiff, Daniel Rivera handled “highly sensitive high-profile cases where Probation managers and supervisors were discharged from the Department.” (Id., 17.) Plaintiff alleges that “senior County management employees” attempted to block the promotions of Plaintiff and Rivera. (Id., 18.) Specifically, “Union Local 721 representatives SDPO Regino Torres and SDPO John Tucheck were fixated on Ms. Manning’s promotion and SDPO Rivera’s promotion.” (Id., 19.) Ultimately, however, “Union Local 721’s grievance was ultimately denied because there were no issues, violations or discrepancies with Ms. Manning’s or Rivera’s promotions – indeed, they were doing their jobs as IA investigators.” (Id., 20.)

In January 2020, former Probation Chief Terri McDonnel retired. (Id., 21.) Interim Chief Ray Leyva replaced Chief McDonnell on an interim basis. (Ibid.) Plaintiff alleges:

[I]n or about February or March 2020, Interim Chief Leyva and other senior leadership of the Probation Department, including Deputy Director Ron Barrett, begam circumventing established “roundtable” procedures in the Department concerning the evaluation of investigations and overturning of discipline and that this secret and unaccountable group consisted of white men and excluded higher ranking women and persons of color who should have been part of the roundtable chain of command, particularly in light of the representative and proportional amount of people of color and women who make up the Probation Department. Plaintiff is informed and believes that her supervisor, IA Bureau Chief Jennifer Donnell, spoke out against these actions. Plaintiff is further informed and believes that Bureau Chief Donnell met with Interim Chief Leyva and disclosed her protest and concern over the delegation of investigation and discipline evaluations and decision making to overturn discipline outside the chain of command to an unaccountable secret “committee” made up only of white men.

(Id., 22-23.) As a result, Bureau Chief Jennifer Donnell was removed from Internal Affairs and given “a lower-level assignment.” (Id., 25.)

In March and April 2020, Plaintiff’s role in the FBI investigation became known to the Probation Department’s management. Plaintiff alleges that Department management were informed of “pending federal and local criminal matters that no one previously knew of, which included the role and involvement of Plaintiff as a witness and whistleblower who had testified and disclosed concerns and information related to abuse and misconduct within the Probation Department.” (Id., 27.) Specifically, Plaintiff alleges that Assistant Chief Brandon Nichols, Interim Chief Ray Leyva, and Deputy Director Ron Barrett were informed of the FBI investigations of juvenile halls and SEIU Local 721. (Id., 28.)

On or about June 4, 2020, Interim Chief Ray Leyva sent out an email “attacking the integrity and administrative process of Internal Affairs and Performance Management units.” (Id., 30.) There is no allegation that this email referenced Plaintiff specifically. (Ibid.) On or about June 8, 2020, Deputy Director Ron Barrett removed Director Jessica Gama from managing Internal Affairs and replaced her with Norberto Zaragosa. (Id., 31.) On June 19, 2020, the Internal Affairs staff received an email stating that a consultant, Michael Bornman, would be reviewing the cases and would meet with investigators individually to make recommendations on how each one conducts and managements investigations. (Id., 32.) Bornman met with the “Special Project Team” but not Plaintiff or any other Internal Affairs administrative investigators. (Ibid.) On August 21, 2020, Plaintiff and Rivera were “reassigned and removed” from the County’s Internal Affairs department. (Id., 33.) Plaintiff asked Zaragosa why she was being reassigned, and he stated, “I don’t know.” (Id., 34.) Plaintiff was told that “the Administrative Investigator position is listed as an asterisk position and the Department was making some changes.” (Id., 35.)

Zaragosa informed Plaintiff that she would receive a list of available SDPO positions throughout the Department on August 25, 2020. (Id., 36.) She received a list the next day, but “some of the choices on the list did not even provide a work location to make a sound decision.” (Id., 37.) Also, “[t]here was no information within the reassignment letter that provided a timeframe to make a selection for a position or who to contact after a selection was made further contributing to the adverse actions against Ms. Manning.” (Ibid.) Two days later, an assistant director called Plaintiff to ask if she had selected a new assignment. (Id., 38.) When she indicated that she had not, the assistant director stated that “if [she] did not make a selection soon, a position would be decided for her which caused further anxiety and adverse employment conditions . . . .” (Id., 39.) Plaintiff selected an assignment to the Juvenile Justice Crime Prevention Act program out of concern that she would be reassigned without input. (Id., 40.) Plaintiff alleges that several African-American managers were reassigned from their departments once Leyva became Interim Chief. (Id., 46-47.) Plaintiff also alleges that her removal coincides with the removal of another African-American woman and Rivera, who is Latino. (Ibid.)

Plaintiff had been with Internal Affairs for nine years without any complaints about her work performance. (Id., 44.) She has received no discipline. (Ibid.) She also received letters of commendation and multiple outstanding work performance evaluations. (Id., 45.)

LEGAL STANDARD

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

DISCUSSION

A. Retaliation Claim under Labor Code section 1102.5

Plaintiff’s first cause of action is one for whistleblower retaliation in violation of California Labor Code section 1102.5. This section states:

An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information . . . to a government or law enforcement agency . . . if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute . . . .

(Lab. Code, 1102.5(b).) Plaintiff alleges that on or about February 11, 2019, she received notice from “LA County representatives” informing her that she would be a witness in an FBI investigation. (First Amended Complaint, 14.) Plaintiff alleges that she was interviewed and disclosed “illegal workplace conditions, mistreatment, abuse of children, and witness intimidation in the Probation Department.” (Id., 15.) Plaintiff then alleges that the senior leadership of the Probation Department—as opposed to the County—discovered her role in February or March 2020; the reorganization began with an email on June 4, 2020; and Plaintiff was transferred on August 21, 2020. (Id., 22, 30, 33.) This is sufficient to state a claim for retaliation under Labor Code section 1102.5.

Defendant attempts to invoke the sham pleading doctrine with respect to the new allegation that the Probation Department’s senior leadership—Assistant Chief Brandon Nichols, Interim Chief Ray Leyva, and Deputy Director Ron Barrett—learned of her involvement in the FBI investigation only in February or March 2020. The Court cannot conclude that the sham pleading doctrine necessarily bars this amendment. In the original complaint, Plaintiff alleged that she received an email from “LA County representatives” on February 11, 2019, and “senior County management employees” learned of her involvement in the FBI investigation at an unspecified time. (Complaint, 14-15.) The first amended complaint merely adds this time period, which was February or March 2020.

The Court notes that the original complaint, as well as the first amended complaint, alleges that “senior County Management employees” attempted to block Plaintiff’s promotion. The allegations do not expressly state this was based upon her whistleblowing activities. Regardless, at best, the allegations make clear that SDPO Regino Torres and SDPO John Tucheck were aware of Plaintiff’s role in the FBI investigation. (First Amended Complaint, 19.) The first amended complaint alleges that Assistant Chief Brandon Nichols, Interim Chief Ray Leyva, and Deputy Director Ron Barrett were informed of the pending federal and local criminal matters, including Plaintiff’s role as a witness and whistleblower, only in March and April 2020. The first amended complaint alleges that Leyva and Barrett made the decision to transfer Plaintiff. Given the deferential pleading standard, Plaintiff’s cause of action for retaliation survives. “Notwithstanding the absence of direct evidence of retaliatory animus, close temporal proximity between a plaintiff’s protected activity and the alleged retaliatory conduct against the plaintiff has been found sufficient to support a prima facie case of causation.” (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 243–244.) Therefore, the Court overrules the demurrer with respect to the first cause of action.

B. FEHA Claims

Plaintiff asserts three claims under FEHA: Discrimination, retaliation, and failure to investigate and prevent harassment, discrimination, and retaliation. The Court previously sustained Defendant’s demurrer to these causes of action. However, the first amended complaint still alleges insufficient facts suggesting a nexus or causal connection between her transfer and her race. (See Faust v. Cal. Portland Cement Co. (2007) 150 Cal.App.4th 864, 886; Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.) As Defendant is a public entity, Plaintiff must allege her claims against Defendant with particularity. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) Plaintiff does not allege anything suggesting that her transfer was related to her race as opposed to the Probation Department’s reorganization or her whistleblowing activities. Indeed, Plaintiff’s first amended complaint makes clear that numerous employees and managers were transferred as part of a larger reorganization. The first amended complaint also suggests that the removal of her and other employees was based upon their whistleblowing activities:

[Plaintiff’s] removal coincides with the removal of other IA personnel of color, including Jennifer Donnell (an African-American woman) and Daniel Rivera (a Hispanic male) who had performed their investigation duties and refused pressure to avoid or suppress investigation of use of force cases and/or cases involving senior management, union officials, and/or their friends and allies.

(First Amended Complaint, 46.)

Plaintiff suggests that African-American employees were treated differently, and that Deputy Director Ron Barrett, who made the decision to transfer Plaintiff, is a Caucasian male, but she fails to allege specific facts. For example, Plaintiff alleges that “several African-American managers were reassigned from their departments once Chief Leyva took over,” but she provides insufficient detail to identify these individuals or to conclude that there was discrimination, especially given her allegations that there was a widespread reorganization and that she was offered a comparable position. Plaintiff also alleges that her removal “coincides” with the removal of Jennifer Donnell, also an African-American woman, and Daniel Rivera. (See First Amended Complaint, 46.) The mere fact that another African-American female employee was transferred at the same time as Plaintiff is not sufficient standing alone to suggest discrimination. This is especially true given Plaintiff’s allegation that there was a department-wide reorganization, which explains why transfers would occur at the same time, as well as Plaintiff’s allegation that Ms. Donnell also engaged in whistleblowing activities. Moreover, it is unclear how Daniel Rivera’s transfer support Plaintiff’s allegation that she suffered discrimination based upon her being African-American. The first amended complaint alleges that Rivera is Latino, not African-America, and suggests that Chief Leyva also is Latino.

In her opposition, Plaintiff argues that “[a] cadre of white managers lead by Ron Barrett, organized the ouster of Plaintiff and her IA supervisor, Bureau Chief Jennifer Donnell, another African-American employee, who had engaged in whistleblower activities.” (Plaintiff’s Opposition, p. 3:3-6.) Again, this argument appears to focus on their whistleblowing, which the Court agrees is sufficient to state a claim for retaliation under Labor Code section 1102.5. Plaintiff argues that there was an effort to replace her and Ms. Donnell with non-African-American employees, but the first amended complaint does not contain specific allegations on this point. For example, the first amended complaint does not identify who replaced Plaintiff. Nor does the first amended complaint allege, for example, that the person who replaced her was not qualified for the position. At heart, the first amended complaint contains no allegations suggesting that Plaintiff’s transfer was based upon her race as opposed to her whistleblowing or a department reorganization.

Therefore, the Court sustains the demurrer to Plaintiff’s FEHA claims. The Court previously granted leave to amend, and Plaintiff alleged virtually no new facts in support of her FEHA claims, focusing her amendment on the retaliation claim. Plaintiff’s counsel proffers nothing to suggest that there are additional facts that would support a successful amendment. Therefore, the Court declines to afford leave to amend.

CONCLUSION AND ORDER

The Court orders as follows:

1. The Court overrules the demurrer with respect to the first cause of action, which is for retaliation under Labor Code section 1102.5. Defendant shall file an answer within thirty (30) days.

2. The Court sustains the demurrer to the remaining causes of action, which arise under FEHA, without leave to amend. The Court notes that the discovery on the first cause of action would largely overlap with the discovery on the FEHA causes of action, which suggests that Plaintiff could develop sufficient facts during discovery to seek leave to amend to re-allege the FEHA causes of action. This order is without prejudice to Plaintiff doing so.

3. Defendant’s counsel shall provide notice and file proof of such with the Court.

Case Number: *******7328 Hearing Date: March 1, 2022 Dept: 39

Paula Manning v. County of Los Angeles

Case No. *******7328

Demurrer

BACKGROUND

Plaintiff Paula Manning (“Plaintiff”) filed this action against the County of Los Angeles (the “County” or “Defendant”) asserting causes of action for retaliation under Labor Code section 1102.5, discrimination under Government Code section 12940, harassment under Government Code section 12940, retaliation under government code section 12940, and failure to investigate and prevent harassment, discrimination and retaliation under Government Code section 12940. Defendant demurs to the complaint, which Plaintiff opposes. The demurrer is sustained with leave to amend.

PLAINTIFF’S ALLEGATIONS

Plaintiff is an African-American female who was hired by the Los Angeles County Probation Department in June 2000. (Complaint, 9.) From February 2001 to March 2005, Plaintiff worked in the private sector, and then returned to the County to work in the Department of Consumer Affairs. (Id., 10.) In November 2011, Plaintiff was promoted to Supervising Deputy Probation Officer and was assigned to work in the County’s Internal Affairs Bureau (“IA”) in charge of investigating use of force cases. (Id., 11.) On or about March 23, 2017, Plaintiff investigated a case involving misuse of force and inaccurate documentation against multiple probation officers. (Id., 12.) In or about September 2017, the case was substantiated, and the County terminated each of the subjects of the investigation for misconduct. (Id., 13.)

On or about February 11, 2019, Plaintiff received an email from the County informing her that she had been named as a witness in a matter under investigation by the Federal Bureau of Investigation (the “FBI”), concerning alleged witness tampering by another County employee, including misconduct by senior County management employees. (Id., 14.) Plaintiff was interviewed by the FBI, following which senior County management employees learned that Plaintiff “had testified as a witness against them.” (Id., 15.) On October 8, 2019, Plaintiff and another investigator, Daniel Rivera were promoted to Supervising Deputy Probation Officer (“SDPO”). (Id., 16.)

Plaintiff alleges that “senior County management employees” attempted to block the promotions of Plaintiff and Rivera. (Id., 18.) Specifically, “Union Local 721 representatives SDPO Regino Torres and SDPO John Tucheck were fixated on Ms. Manning’s promotion and SDPO Rivera’s promotion.” (Id., 19.) Ultimately, however, “Union Local 721’s grievance was ultimately denied because there were no issues, violations or discrepancies with Ms. Manning’s or Rivera’s promotions – indeed, they were doing their jobs as IA investigators.” (Id., 20.)

In January 2020, former Probation Chief Terri McDonnel retired. (Id., 21.) In March 2020, Bureau Chief Jennifer Donnell was removed from Internal Affairs. (Id., 22.) On or about June 4, 2020, Interim Chief Ray Leyva sent out an email “attacking the integrity and administrative process of Internal Affairs and Performance Management units.” (Id., 23.) There is no allegation that this email referenced Plaintiff specifically. On or about June 8, 2020, Deputy Director Ron Barrett removed Director Jessica Gama from managing Internal Affairs and replaced her with Norberto Zaragosa. (Id., 24.) On June 19, 2020, the Internal Affairs staff received an email stating that a consultant, Michael Bornman, would be reviewing the cases and would meet with investigators individually to make recommendations on how each one conducts and managements investigations. (Id., 25.) Bornman met with the “Special Project Team” but not Plaintiff or any other Internal Affairs administrative investigators. (Ibid.) On August 21, 2020, Plaintiff and Rivera were “reassigned and removed” from the County’s Internal Affairs department. (Id., 26.) Plaintiff asked Zaragosa why she was being reassigned, and he stated, “I don’t know.” (Id., 27.) Plaintiff was told that “the Administrative Investigator position is listed as an asterisk position and the Department was making some changes.” (Id., 28.)

Zaragosa informed Plaintiff that she would receive a list of available SDPO positions throughout the Department on August 25, 2020. (Id., 29.) She received a list the next day, but “some of the choices on the list did not even provide a work location to make a sound decision.” (Id., 30.) Also, “[t]here was no information within the reassignment letter that provided a timeframe to make a selection for a position or who to contact after a selection was made further contributing to the adverse actions against Ms. Manning.” (Ibid.) Two days later, an assistant director called Plaintiff to ask if she had selected a new assignment. (Id., 31.) When she indicated that she had not, the assistant director stated that “if [she] did not make a selection soon, a position would be decided for her which caused further anxiety and adverse employment conditions . . . .” (Id., 32.) Plaintiff selected an assignment to the Juvenile Justice Crime Prevention Act program out of concern that she would be reassigned without input. (Id., 33.) Plaintiff alleges that several African-American managers were reassigned from their departments once Leyva became Interim Chief. (Id., 39-40.) Plaintiff also alleges that her removal coincides with the removal of another African-American woman and Rivera, who is Latino. (Id., 39.)

Plaintiff has been with Internal Affairs for nine years without any complaints about her work performance. (Id., 35.) She has received no discipline. (Ibid.) She also received letters of commendation and multiple outstanding work performance evaluations. (Id., 36.)

LEGAL STANDARD

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

DISCUSSION

A. Retaliation Claims

Plaintiff alleges that she was identified as a witness in a federal investigation on February 11, 2019, and was interviewed by the FBI. Afterwards, on October 8, 2019, she was promoted. Then, eighteen months after the County learned of the FBI’s interest in Plaintiff, on August 21, 2020, she was reassigned from the Department, following a change in management and an internal review, but was offered a comparable position. “Notwithstanding the absence of direct evidence of retaliatory animus, close temporal proximity between a plaintiff’s protected activity and the alleged retaliatory conduct against the plaintiff has been found sufficient to support a prima facie case of causation.” (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 243–244.) Not only does Plaintiff not allege any temporal proximity, Plaintiff admits that she received a promotion between the time of her FBI interview and the alleged retaliation, as well as multiple letters of commendation and outstanding performance evaluations.

Nor does Plaintiff allege any facts linking the FBI interview with the alleged retaliation. For example, Plaintiff does not allege that she provided information against the individuals who transferred her and that they did so in order to punish her. To the contrary, Plaintiff alleges that the County terminated the employees at issue for misconduct and that she received glowing reviews, suggesting that the County endorsed and supported Plaintiff’s investigation. Plaintiff alleges that two union representatives opposed her promotion, but again, she does not link this to her FBI interview. Regardless, this cannot form the basis of a lawsuit because she suffered no adverse employment action, having been promoted over their objections and having continued to receive outstanding performance evaluations. Finally, Plaintiff makes conclusory allegations that she was “punished for doing her job,” but there are no factual allegations in support of such accusations. Plaintiff admits that she has an exemplary work record without any discipline or complaints. (Id., 35-36.)

Therefore, the Court sustains the demurrer to the first and fourth causes of action. The Court is skeptical whether Plaintiff can amend the retaliation allegations in light of the facts she has alleged, but the Court will afford leave to amend out of an abundance of caution.

B. Discrimination Claims

Plaintiff asserts causes of action for discrimination and harassment, which require Plaintiff to allege facts suggesting a nexus or causal connection between her transfer and her race. (See Faust v. Cal. Portland Cement Co. (2007) 150 Cal.App.4th 864, 886; Thompson v. City Of Monrovia (2010) 186 Cal.App.4th 860, 876.) As Defendant is a public entity, Plaintiff must allege her claims against Defendant with particularity. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) Plaintiff fails to do so. Plaintiff does not allege anything suggesting that her transfer was related to her race as opposed to the department reorganization. Indeed, Plaintiff’s complaint makes clear that numerous employees and managers were transferred. Plaintiff suggests that African-American employees were treated differently, but she fails to allege specific facts that would support that inference. For example, Plaintiff alleges that “several African-American managers were reassigned from their departments once Chief Leyva took over,” but she provides insufficient detail to identify these individuals or to conclude that there was discrimination, especially given her allegations that there was a widespread reorganization and that she was offered a comparable position at another agency. The mere fact that another African-American female employee also was transferred is not sufficient standing alone to suggest discrimination. Plaintiff alleges that Latino employees were transferred by the interim chief and the new director, both of whom have Latino surnames, which further confuses her allegations of racial discrimination based upon her being African-American. Finally, Plaintiff’s claim for harassment alleges nothing falling outside the scope of job-related decisions.

Therefore, the Court sustains the demurrer to the second, third, and fifth causes of action. The Court affords leave to amend.

CONCLUSION AND ORDER

The Court sustains the demurrer with leave to amend. Plaintiff may file a first amended complaint within twenty (20) days. Defendant shall provide notice and file proof of such with the Court.