MILLER, Acting P. J.
Plaintiff and appellant Nan Moore (Moore) sued defendants and respondents City of Adelanto (the City), Richard Kerr (Kerr), Jermaine Wright (Wright), and John Woodard, Jr. (Woodard). Moore brought (1) a hostile work environment cause of action; (2) wrongful termination causes of action based upon age and gender discrimination, being a whistleblower, and retaliation; and (3) three causes of action alleging a violation of due process under the California Constitution. The City, Kerr, Wright, and Woodard (collectively, Defendants) filed an anti-SLAPP motion. (Code Civ. Proc., § 425.16; hereinafter, § 425.16.) The trial court granted the motion. Moore contends the trial court erred by granting the motion. We reverse the judgment.
Kerr was the mayor of the City; Wright and Woodard were councilmembers. Moore began working for the City on July 1, 1998, as a street laborer. Ultimately, Moore was promoted to supervisor of the street department. The City is a charter city. The charter provides that the city manager—not the Mayor or Councilmembers—has sole authority over employees of the City.
Several years prior to Kerr becoming mayor of the City, Moore and Kerr had a dispute. While Kerr campaigned to be mayor, he "made it known that he sought to fire [Moore]." Kerr became mayor on February 1, 2015. From February 2015 until September 2015, Kerr "sent numerous emails to the city attorney, other councilmen and the City Manager demanding that [Moore] be fired." Kerr had multiple meetings with the city manager for the purpose of having Moore's employment terminated. The city manager and the city attorney refused to terminate Moore's employment, explaining that the termination would violate the City's charter and the Brown Act.
In February 2015, Moore learned of Kerr's attempts to have her employment terminated. The city manager assured Moore that she would not be fired by Kerr. Moore complained to the City's human resources department about Kerr's violations of the City charter and the Brown Act. The human resources department did not act in response to Moore's complaint. Also in February 2015, the city council terminated Jim Hart as the city manager and replaced him with Tom Thornton (Thornton).
In May 2015, Moore's name was placed on the agendas for closed session meetings. Moore was not informed of the reason for her name being placed on the agendas. Thornton resigned as city manager; in August 2015 he was replaced with Cindy Herrera. Additionally, the city attorney was fired and a new city attorney was hired.
Kerr, Wright, and Woodard directed Herrera to initiate an investigation into Moore. Kerr sent text messages to employees seeking "`dirt' on [Moore]." One employee responded. The employee alleged that Moore "issued job tasks based on personal liking." Kerr "coached and directed the employee to make the allegation." The city attorney's office investigated but did not take further action against Moore.
On September 2, 2015, Moore was placed on administrative leave with the reason being "fiscal issues." Moore requested both pretermination and posttermination hearings. The pretermination hearing occurred on September 16. The person who attended the hearing on behalf of the City did not have authority to rehire Moore, did not discuss Moore's termination, and did not have knowledge about the reason for Moore's termination.
The date of Moore's termination was posted. The City unilaterally chose a date for the posttermination hearing. Moore objected because an arbitrator had not been jointly selected and discovery needed to be conducted prior to the hearing. Approximately one year later, the City selected a defense firm attorney as the hearing officer. Moore objected. Moore filed a Fair Employment and Housing Act (FEHA) complaint and received a right to sue letter. A posttermination hearing was not held.
Moore's first cause of action was for a hostile work environment in violation of FEHA. (Gov. Code, § 12900 et seq.) Moore alleged that, on a daily basis, Kerr and Wright told City employees that they would have Moore's employment terminated. Kerr sent text messages to Moore's subordinates "asking for `dirt' on [Moore]." Moore was suspended with pay after Kerr encouraged one of Moore's subordinates to complain that Moore gave the subordinate "less favorable assignments because of a personal conflict." Moore was able to return to work after the investigation showed the allegation was unfounded.
Additionally, Kerr and Wright made false statements about Moore's work ethic. Moore's name was placed on a closed session hearing without notice to Moore. Moore's work was "constantly watched and every decision was scrutinized." Moore suffered mental and emotional distress due to the hostile work environment.
Moore's second cause of action alleged wrongful termination due to age discrimination. Moore was "almost 50" when her employment was terminated. Moore asserted the person who replaced her "was substantially less qualified than [Moore]." Moore's third cause of action alleged wrongful termination due to gender discrimination. Moore asserted that during the last six months of her employment "[d]efendant made gender discriminatory comments" and Moore "was replaced with a male."
Moore's fourth cause of action alleged wrongful termination due to Moore being a whistleblower. Moore alleged she complained to the City about Kerr, Wright, and Woodard violating the City's charter and the Brown Act. Moore asserted she "was ultimately terminated after a campaign of negative comments made to city employees, a witch hunt of an investigation, a suspension during the investigation, returning to work in [a] hostile, harassing, discriminatory workplace, with the knowledge that the Defendant, councilmen wanted her fired." Moore's fifth cause of action asserted wrongful termination due to retaliation. Moore repeated the allegations from the fourth cause of action.
Moore's sixth cause of action alleged a violation of due process under the California Constitution, due to the failure to provide Moore with notice of the closed session meetings in which her name was on the agenda. Moore's seventh cause of action asserted a violation of due process under the California Constitution, due to the failure to provide Moore a pretermination hearing with a person who had the authority to rehire Moore. Moore's eighth cause of action alleged a violation of due process under the California Constitution, due to the failure to provide Moore with a posttermination hearing.
Defendants filed an anti-SLAPP motion. In 2014, Kerr and Woodard campaigned "on the promise of addressing the fiscal issues of the City." Kerr, Wright, and Woodward believed the City's financial issues could be resolved through reducing expenses, such as by consolidating or eliminating unnecessary jobs. Moore "served a middle-management type role . . . and shared responsibility for supervision of laborers." Defendants concluded Moore's job "could be absorbed by other employees or otherwise reassigned." A budget was approved that eliminated Moore's job.
Moore's wrongful termination claims arise from protected activity because Moore was terminated "through the City Council's general plan to balance the City's budget in light of a Fiscal Emergency." Moore's due process claims arise from protected activity because they concern "governmental speech and legislative action by [the] city council." Defendants asserted Moore's "lawsuit is a direct attack on the city council's decision to deliberate about, discuss and recommend that her position be abolished due to the budgetary issues and the lack of necessity for her position."
Moore opposed Defendants' anti-SLAPP motion. Moore asserted, "The utterance of false allegations against her work ethic, negative comments about her person and her work performance, false claims of discrimination and personal preference, does not chill `participation in matters of public significance[]' or of public interest." (Boldface and italics omitted.) Moore asserted, "[T]he statements were not in the furtherance of government business and outside the scope of determining the fiscal aspects of the City."
The trial court found Moore's allegations arose from protected activity. In regard to the hostile work environment cause of action, the trial court found Moore's complaint arose from Kerr's campaign speeches and Kerr speaking to the city manager. The trial court concluded those activities were protected because they were associated with campaigning for public office and "address[ed] employment matters in associated [sic] with legislative matters, e.g., the City's fiscal issues."
The trial court found the wrongful termination causes of action arose from protected activity because they concerned "legislative action associated with claimed fiscal issues." The trial court found the due process causes of action arose from protected activity because "the gravamen of [Moore's] allegations arise from actions taken that are associated with a legislative proceeding or in connection with issues under legislative consideration, i.e., the fiscal issues before the City of Adelanto which in turn affected [Moore's] position."
The trial court found Moore failed to demonstrate a probability prevailing on her causes of action. The trial court granted Defendants' anti-SLAPP motion.
Moore contends the trial court erred by granting the anti-SLAPP motion.
The anti-SLAPP statute is designed to "encourage continued participation in matters of public significance" by stopping lawsuits that would otherwise chill a person's public participation due to abuse of the judicial process. (§ 425.16, subd. (a).) There are two steps to determining if a lawsuit is designed to curb the defendants' participation in matters of public significance.
The first step is examining the causes of action to determine if they arise from any act in furtherance of the defendants' "right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue." (§ 425.16, subd. (b).) The second step is determining whether the plaintiff has a probability of prevailing on her claims. (§ 425.16, subd. (b).) If a cause of action arises from an act in furtherance of the defendants' right of petition or free speech and the plaintiff does not have a probability of prevailing, then the cause of action will be stricken. (§ 425.16, subd. (b).) We apply the de novo standard of review. (Park v. Board of Trustees of California State University System (2017) 2 Cal.5th 1057, 1067.)
An "`act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any . . . oral statement . . . made before a legislative . . . proceeding, or any other official proceeding authorized by law, (2) any . . . oral statement . . . made in connection with an issue under consideration or review by a legislative . . . body, or any other official proceeding authorized by law, (3) any . . . oral statement . . . made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)
"In deciding whether the initial `arising from' requirement is met, a court considers `the pleadings, and supporting and opposing affidavits, stating the facts upon which the liability or defense is based.' (§ 425.16, subd. (b).)" (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) "`The mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] . . . In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.'" (In re Episcopal Church Cases (2009) 45 Cal.4th 467, 477.)
Moore's first cause of action is brought under FEHA and alleged she suffered retaliation and a hostile work environment.
"Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the Department of Fair Employment and Housing (the Department) and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA." (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.) In order for the plaintiff to have exhausted his/her administrative remedies, the issues raised in the court-filed complaint cannot exceed the scope of the issues that were raised in the Department-filed complaint. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 153-154.)
"`"The administrative exhaustion requirement is satisfied if the allegations of the civil action are within the scope of the [Department] charge, any [Department] investigation actually completed, or any investigation that might reasonably have been expected to grow out of the charge. Thus, the judicial complaint may encompass any discrimination `like and reasonably related to' the allegations of the [Department] charge."'" (Wills v. Superior Court, supra, 195 Cal.App.4th at pp. 154-155.)
Moore's Department-filed complaint is attached to her FAC. In the Department-filed complaint, Moore complained of "retaliation for whistle blowing." Moore asserted, "I made complaints that the Mayor and Mayor Pro Tem were violating the Brown Act and the city charter. In retaliation for whistle blowing, I was harassed and placed in a hostile work environment. The Mayor and Mayor Pro Tem would tell the city manager to terminate me and the city manager would say no. . . . I am 54 years old.
While Moore includes her age in the Department-filed complaint, she does not allege any age discrimination. Rather, she asserts that she was retaliated against because she was a whistleblower, and her whistleblowing pertained to alleged violations of the City's charter and the Brown Act. Accordingly, when analyzing the hostile work environment cause of action in the FAC, we focus on the repeated attempts to have Moore's employment terminated in retaliation for her alleging violations of the Brown Act and the City's charter.
FEHA provides, "[I]t is an unlawful employment practice . . . [f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." (Gov. Code, § 12940, subd. (h), italics added.) Moore has not alleged that she was retaliated against due to her opposition to discriminatory practices, which are prohibited under FEHA. (Gov. Code, § 12940, subd. (a).) Rather, she has asserted that she was retaliated against for opposing violations of the Brown Act and the City's charter. We infer that Moore intended to allege a whistleblower/retaliation claim under the Labor Code (Labor Code, § 1102.5, subd. (b))—not under FEHA.
An employee is not required to exhaust his/her administrative remedies with the Labor Commissioner prior to bringing a civil action under Labor Code section 1102.5. (Lab. Code, §§ 244, subd. (a), 98.7, subd. (g).) However, an employee must exhaust any internal administrative remedies, i.e., procedures imposed by the City. (Terris v. County of Santa Barbara (2018) 20 Cal.App.5th 551, 556.) In analyzing the anti-SLAPP issue of protected activity, we are not concerned with whether Moore has exhausted any applicable administrative remedies. Accordingly, we do not delve further into the issues of whether there are internal remedies and whether Moore exhausted them.
We interpret Moore's first cause of action as alleging a violation of Labor Code section 1102.5, subdivision (b). (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 585 [complaints are broadly construed].) 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."
Thus, in sum, the basis of Moore's first cause of action is that she was retaliated against for alerting others to alleged violations of the Brown Act and the City charter. The retaliation against Moore allegedly consisted of Kerr and Wright repeatedly telling the city manager to terminate Moore's employment, soliciting complaints about Moore from her subordinates, and suspending her employment while investigating a solicited complaint. Moore is not complaining of budget discussions at the city council meeting; she is complaining of harassment in the form of repeatedly seeking to terminate Moore's employment in retaliation for her whistleblowing activities.
Our Supreme Court has explained the difference between a lawsuit against public officials that arises from protected speech, and a lawsuit against public officials that does not arise from protected speech: "[I]n Nam v. Regents of University of California (2016) 1 Cal.App.5th 1176, the plaintiff, a University of California Davis medical resident, sued for sexual harassment, discrimination, and wrongful termination. The defendant Regents' anti-SLAPP motion contended the suit arose from communicated complaints about the plaintiff's performance, written warnings it issued her, an investigation it conducted, and the written notice to plaintiff of her termination. Not so; the basis for liability was instead the Regents' alleged retaliatory conduct, including `"subjecting [plaintiff] to increased and disparate scrutiny, soliciting complaints about her from others, removing [her] from the workplace, refusing to permit her to return, refusing to give her credit towards the completion of her residency, failing to honor promises made regarding her treatment, and ultimately terminating her on February 2, 2012."' [Citation.] Nam illustrates that while discrimination may be carried out by means of speech, such as a written notice of termination, and an illicit animus may be evidenced by speech, neither circumstance transforms a discrimination suit to one arising from speech. What gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of a discriminatory or retaliatory consideration." (Park v. Board of Trustees of California State University, supra, 2 Cal.5th at p. 1066.)
The instant allegations are similar to those in Nam. Moore is not complaining that Defendants spoke about the City's budget. Rather, she is complaining that she was targeted for repeated discussions about terminating her employment and suspended from work, due to her reporting alleged violations of the City's charter and the Brown Act. Thus, liability is not based upon Defendants' free speech or petitioning; it is based upon their alleged retaliation against Moore in creating a hostile work environment. In sum, the first cause of action does not arise from protected activity.
Defendants contend that, because Moore was a public employee, her job performance and employment status "necessarily are a matter of public interest." (§ 425.16, subd. (e)(3)&(4).) As explained ante, Defendants' alleged conduct does not consist of statements or conduct in furtherance of the constitutional rights of free speech or petition. Therefore, assuming Moore's employment status is a matter of public interest, the alleged conduct at issue is not protected statements or conduct in furtherance of the constitutional rights of free speech or petition made in connection with an issue of public interest. (§ 425.16, subd. (e)(3)&(4).)
Moore's wrongful termination causes of action are based upon age discrimination, gender discrimination, and whistleblower retaliation. Moore is not alleging that her termination was due to Defendants' desire to balance the City's budget. It is the discrimination and retaliation that are the gravamen of the alleged wrongful conduct. (See Wilson v. Cable News Network, Inc. (2016) 6 Cal.App.5th 822, 835 ["Discrimination and retaliation are not simply motivations for defendants' conduct, they are the defendants' conduct"].)
Discriminatory employment practices and whistleblower retaliation are rarely, if ever, activities in furtherance of petitioning or free speech. (Bonni v. St. Joseph Health System (2017) 13 Cal.App.5th 851, 864.) As this court has explained, "`[I]f this kind of suit could be considered a SLAPP, then [employers] could discriminate . . . with impunity knowing any subsequent suit for . . . discrimination would be subject to a motion to strike and dismissal.'" (Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 625.)
The acts of discriminating against Moore or retaliating against Moore are not alleged to have occurred during city council meetings. (§ 425.16, subd. (e)(1).) Discriminating and retaliating against Moore were not items under consideration by the city council. (§ 425.16, subd. (e)(2).) Discriminating and retaliating against Moore are not alleged to have occurred during a public forum. (§ 425.16, subd. (e)(3).) Discriminating and retaliating against Moore did not advance Defendants' constitutional rights of petition or free speech in connection with a public issue. (§ 425.16, subd. (e)(4).) Accordingly, the gravamen of Moore's causes of action alleging wrongful termination due to discrimination and retaliation do not arise from protected activity.
Defendants contend Moore's job was eliminated "along with the positions of 18 other City employees—as a cost saving measure to address the City's Fiscal Emergency." The budgetary basis for eliminating Moore's job is the gravamen of Defendants' defense. It is not the gravamen of Moore's complaint. (See Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1482-1484 [determine whether the cause of action is based on protected activity].)
In the first step of the anti-SLAPP analysis, "[a] plaintiff's complaint ultimately defines the contours of the claims." (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 936.) "Consistent with the primary role of the complaint in identifying the claims at issue, courts have rejected efforts by moving parties to redefine the factual basis for a plaintiff's claims as described in the complaint to manufacture a ground to argue that the plaintiff's claims arise from protected conduct." (Ibid.)
"For example, in Central Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, the First Appellate District recently affirmed the denial of an anti-SLAPP motion by the operator of a hospital that claimed the plaintiff's claims were based on protected medical peer review activities. The complaint did not allege facts concerning peer review, and expressly disavowed basing any claims on peer review conduct. The court rejected the defendant's attempt to construct a peer review claim through facts included in its own declarations. Citing a number of cases that reached similar conclusions, the court explained that `"[t]he question is what is pled—not what is proven."'" (Bel Air Internet v. Morales, supra, 20 Cal.App.5th at pp. 936-937.)
It is possible that, as the case proceeds, Moore will assert that including her job in the budgetary cuts was a pretext for discriminating or retaliating against her, as she alleges in her appellant's reply brief. (Nakai v. Friendship House Assn. of American Indians, Inc. (2017) 15 Cal.App.5th 32, 39 [employee must show employer's claimed neutral reason was a pretext for discrimination].) It is also possible that only older workers were terminated through the budget cuts. (See Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 381-382 [eliminating only older workers].) The point is, we cannot, at this stage of the proceedings, decide that Moore's job was eliminated purely due to non-discriminatory budget cuts. The gravamens of Moore's wrongful termination causes of action are discrimination and retaliation. Those alleged acts are not protected activities.
Moore's due process claims are based upon (1) not being given notice of the closed session meeting in which her name was on the agenda; (2) not having a person authorized to rehire her at the pretermination Skelly
The lack of notice, lack of an authorized supervisor at the pretermination hearing, and lack of a posttermination hearing constitute omissions. The failures to provide notice, an authorized supervisor, and a hearing are not written or oral statements made before a legislative body because no statement was made; the causes of action concern the failures to provide notice, a hearing, and an authorized supervisor. (§ 425.16, subd. (e)(1).) The failures to provide notice, a hearing, and an authorized supervisor are not written or oral statements made in connection with an issue under consideration by a legislative body because no statement was made—the allegations concern omissions. (§ 425.16, subd. (e)(2).)
The failures to provide notice, a hearing, and an authorized supervisor are not written or oral statements made in a place open to the public or in a public forum in connection with an issue of public interest, because the allegations are that no notice, hearing, or authorized supervisor were provided. (§ 425.16, subd. (e)(3).) In failing to provide notice of Moore's rights, failing to provide an authorized supervisor at her pretermination hearing, and failing to provide a forum for her posttermination hearing, Defendants limited her ability to discuss the issues related to her employment. By limiting Moore's ability to discuss her employment issues, Defendants were not promoting free speech and the right to petition. Therefore, the failures to provide notice, an authorized supervisor, and a hearing are not conduct in furtherance of the exercise of the constitutional right to petition or the constitutional right of free speech. (§ 425.16, subd. (e)(4).) In sum, the due process causes of action concerning the failures to provide notice, an authorized supervisor, and a posttermination hearing do not arise from protected activity.
Because we have concluded Moore's causes of action do not arise from protected activity, we do not address the issue of whether Moore has a probability of prevailing on the merits of her claims.
The judgment is reversed. Appellant is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
