JOSEPH C. SPERO, United States Magistrate Judge.
Plaintiff Eileen Dowell ("Plaintiff") brings this action against Contra Costa County ("Defendant County") and two Contra Costa County employees, District Attorney Mark Peterson ("Defendant Peterson") and District Attorney Chief Inspector Paul Mulligan ("Defendant Mulligan"), collectively "Defendants." Plaintiff asserts a claim under 42 U.S.C. § 1983, contending Defendants violated her First Amendment rights. Plaintiff also asserts state law claims for negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, as well as whistleblower claim under California Labor Code § 1102.5. Defendants filed a Motion to Dismiss ("Motion") Plaintiff's Complaint in its entirety, contending Plaintiff failed to comply with the California Tort Claims Act prior to initiating suit, failed to state a claim upon which relief may be granted for each asserted cause of action, and failed to exhaust administrative remedies before asserting her whistleblower claim under § 1102.5. The Motion came on for hearing February 22, 2013. For the reasons stated below, the Court GRANTS Defendants' Motion to Dismiss and DISMISSES the Complaint WITH LEAVE TO AMEND.
Plaintiff has worked as the Manager of the Victim Witness Program for Defendant Contra Costa County District Attorney's office since November 2004. Complaint ("Compl.") ¶ 9. Her job responsibilities include securing funding from state and federal authorities to provide financial assistance to crime victims and witnesses who testify in criminal proceedings. Id. Defendant Mark Peterson became the newly-elected District Attorney in Contra Costa County in 2011 and named Defendant Paul Mulligan Chief Inspector of the District Attorney's Office in June 2011. Id. ¶ 10.
On June 2, 2011, Plaintiff was in a meeting with Defendants Peterson and Mulligan when Defendant Mulligan instructed Plaintiff to charge an employee's hours to a grant Plaintiff managed in order to remedy a timekeeping mistake by another manager. Id. ¶ 11. Plaintiff responded
Five days later, Defendant Peterson, who was upset about the content of Plaintiff's email and Cal EMA's response, called Plaintiff into his office with Defendant Mulligan. Id. ¶ 13. Defendant Peterson directed Defendant Mulligan to contact Cal EMA with the same inquiry. Id. Defendant Mulligan emailed Cal EMA, stating that an internal audit had brought to light an accounting error he needed to correct and that his office agreed that changing the timesheets was the best course of action. Id. ¶ 14. Cal EMA again responded that such an action would be illegal. Id.
Plaintiff has since experienced a pattern of events that she alleges constitute retaliation. Id. ¶ 15. In support of her claim, Plaintiff asserts that Defendant Mulligan, despite being her direct supervisor, refused to meet with her for over seven months to support her work managing two grants, two contracts, and eight full-time staff. Id. ¶ 15. She also asserts that when she emailed a colleague in June 2011 requesting updated spending figures from the Victim/Witness Grant, Defendant Mulligan instructed Plaintiff to do the research herself, even though he knew she did not have access to the information necessary to complete the task and it was outside her job responsibilities. Id. ¶ 16. On July 25, 2011, Plaintiff approached Defendant Mulligan about extending a temporary position for an employee. He said he would look into it, but never responded. Id. ¶ 17. Plaintiff lost this support staff due to Defendant Mulligan's inaction. Id.
Plaintiff relates a series of events that began when she missed work due to illness on September 7, 2011. Id. ¶ 18. Defendant Mulligan called Plaintiff to ask the location of the Underserved Victims Grant checkbook because he wanted to write a $900 check for a purpose not approved by the grant. Id. Though Defendant Mulligan said he would pay the money back later, Plaintiff declined to tell him where to find the checkbook. Id. The same day, Plaintiff heard from a co-worker that Defendant Mulligan and another employee had searched Plaintiff's office for the checkbook. Id. Plaintiff reported this incident to Cal EMA, which is investigating the matter. Id. ¶ 19. Plaintiff does not allege whether Defendants are aware that she reported this incident to Cal EMA. See id.
A week after the checkbook incident, Plaintiff approached the other employee who searched Plaintiff's office with Defendant Mulligan. Id. ¶ 20. Plaintiff maintains that the employee became very agitated and yelled at her. Id. Plaintiff reported this incident to Defendant Mulligan and requested that he investigate it and pursue appropriate discipline because the employee was creating a hostile work environment. Id. Defendant Mulligan proposed that the three of them meet, to which Plaintiff agreed if she could first meet with Defendant Mulligan to discuss the incident. Id. Defendant Mulligan refused and instead threatened Plaintiff with insubordination for refusing to meet. Id. Defendant Mulligan never investigated the incident nor disciplined the employee. Id.
Between May and November 2011, Plaintiff and two of her subordinates made a total of three complaints of hostile work environments to Defendant Mulligan. Id. ¶ 22. The complaints all named another employee as creating a hostile work environment. Id. Defendants Peterson and Mulligan never investigated the complaints and thus created a difficult work environment for Plaintiff and her employees. Id.
Plaintiff met with Defendant Mulligan on December 9, 2011, for the first time in many months and in the presence of another colleague, to discuss hiring a new employee. Id. ¶ 23. At the meeting, Defendant Mulligan had a verbal outburst at Plaintiff, proclaiming "[w]hy are you so negative all the time!" Id. Plaintiff called Defendant Mulligan later that day to inquire about his comment and his refusal to meet with her. Id. Defendant Mulligan purportedly responded "[i]t's because I can't meet with you without a third person being present." Id.
On January 13, 2012, Plaintiff was called to Defendant Mulligan's office under the pretense of discussing how to retain an employee who was considering leaving. Id. ¶ 24. Plaintiff was, instead, confronted by an accusatory investigation concerning an incident of alleged sexual harassment by another employee that had occurred five years ago. Id. In the meeting, Plaintiff stated that she had handled the situation in an appropriate manner. Id. ¶ 24. Defendant Paul Mulligan then insinuated that Plaintiff was retaliating against others in the office. Id. On January 20, 2012, Plaintiff emailed Defendant Mulligan about several issues, including a report of mold in the office and a staff member disregarding the chain of command, at which time she responded to the allegation made against her at the January 13 meeting. Id. ¶ 25. Plaintiff wrote, "I do not appreciate the character slander that is occurring that now has led you to make decisions to limit my ability to make management decisions in the program." Id. Defendant Mulligan then demanded she write a memo about the sexual harassment allegation and address specific elements, which was due in one week. Compl. ¶ 26. Defendant Mulligan advised Plaintiff to seek advice from her union or legal counsel. Id. Defendant Mulligan's advice caused Plaintiff to fear for her job security. Id.
Plaintiff also relates events regarding a new employee who began working for her on January 17, 2012. Id. ¶ 27. Plaintiff put in a request to have a telephone line installed in the employee's office. Id. When almost a month had elapsed without the line being installed, Plaintiff contacted the office manager to inquire about the delay. Id. Plaintiff was told that Defendant Mulligan had cancelled her request. Id.
On February 14, 2012, Plaintiff checked the account statements of the Emergency Revolving Fund, which is used exclusively to pay emergency funeral burial expenses to family members of homicide victims.
Finally, Plaintiff was placed on medical leave on February 16, 2012, "due to the stress and emotional toll of working under Defendants." Id. ¶ 30. Two months later, on April 17, 2012, Defendant Mulligan emailed her at her personal email address to ask for help getting statistics off her computer database for a Cal EMA grant. Id. ¶ 31. Four days later, Plaintiff responded that she was not to work per doctor's order, and could not assist him. Id. Plaintiff received a second email from Defendant Mulligan two days later requesting that she call him to explain how to retrieve the information. Id. ¶ 31. Plaintiff refers to Defendant Mulligan's third email, from May 2, 2012, on which he copied Defendant Peterson, telling Plaintiff she must respond before May 7, 2012. Id. On May 6, 2012, Plaintiff' responded to Defendant Mulligan that specialists in the office could assist him with this general task since she was on disability leave. Id. On May 7, 2012, Plaintiff spoke with Cal EMA Chief Sally Henchen about Defendant's request. Id. ¶ 32. Chief Henchen told Plaintiff that no Cal EMA reports were due and that no one from Cal EMA had requested information from the Contra Costa County District Attorney's office. Id. Plaintiff concludes that Defendant Mulligan's request was "likely another attempt to retaliate against and harass Plaintiff." Id.
Defendants filed a Motion to Dismiss on January 7, 2013. Motion at 1. Defendants argue that Plaintiff's entire complaint should be dismissed because Plaintiff did not plead that she complied with the California Tort Claims Act by presenting a written claim for damages to Contra Costa County before filing the suit. Motion at 5-6. Defendants also contend that all of Plaintiff's claims should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure because she fails to plead essential facts to substantiate the elements of the claims and relies on conclusory allegations based only on speculation. Motion at 6-7. Regarding Plaintiff's First Amendment claim, Defendants argue that Plaintiff's allegations fail to meet any of the three required prongs of the claim: that Plaintiff engaged in expressive conduct that addresses a matter of public concern, that government officials took adverse action against her, and that her expressive conduct was a substantial or motivating factor for the governmental officials' adverse action. Motion at 7-10 (citing Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 923 (9th Cir.2004)).
Defendants dispute Plaintiff's other four claims on various grounds. According to Defendants, the whistleblower claim fails because Plaintiff did not engage in activity
Plaintiff filed a memorandum in opposition to Defendants' Motion on January 22, 2013. Plaintiff's Opposition to Motion to Dismiss ("Opp.") at 1. Plaintiff does not oppose dismissal of her third cause of action for negligence or her fourth cause of action for negligent infliction of emotional distress. Opp. at 9. However, Plaintiff maintains that she has pled facts sufficient for her First Amendment claim, her § 1102.5 whistleblower claim, and her claim for intentional infliction of emotional distress to survive Defendants' Motion to Dismiss. Opp. at 2.
A complaint may be dismissed for failure to state a claim for which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(b)(6). "The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint." N. Star. Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.1983). In ruling on a motion to dismiss under Rule 12(b)(6), the Court takes "all allegations of material fact as true and construe(s) them in the lights most favorable to the non-moving party." Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995).
Generally, the plaintiff's burden at the pleading stage is relatively light. Rule 8(a) requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The complaint need not contain "detailed factual allegations," but must allege facts sufficient to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The factual allegations must be definite enough to "raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true." Twombly, 550 U.S. at 545, 127 S.Ct. 1955. "[T]he tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements." Iqbal, 556 U.S. at 663, 129 S.Ct. 1937.
Plaintiff does not oppose the dismissal of her claims for negligence and negligent infliction of emotional distress. These claims are therefore DISMISSED WITH PREJUDICE. The remaining claims in dispute are Plaintiff's first, second, and fifth causes of action for Defendants' alleged violation of Plaintiff's First Amendment rights, violation of California Labor Code § 1102.5, and intentional infliction of
This Court assesses the Plaintiff's claim for retaliation in violation of the First Amendment using a sequential five-step series of questions:
Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009).
Defendants argue that Plaintiff's First Amendment claim fails because her speech was not a matter of public concern. "Whether a public employee or contractor's expressive conduct addresses a matter of public concern is a question of law.... This determination is made in light of `the content, form, and context' of the expressive conduct `as revealed by the whole record.'" Alpha Energy Savers, 381 F.3d at 924 (quoting Connick v. Myers, 461 U.S. 138, 147-48 n. 7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). Speech regarding issues and information that members of society need to make informed decisions about the operation of government deserves protection under the First Amendment. Alpha Energy Savers, 381 F.3d at 924. "In contrast, `speech that deals with individual personnel disputes and grievances and that would be of no relevance to the public's evaluation of the performance of government agencies, is generally not of public concern.'" Id. (quoting Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003)).
In her Complaint, Plaintiff alleges that:
Plaintiff's allegations are sufficient to indicate that she has engaged in three instances of speech that were a matter of public concern. First, Plaintiff informed the District Attorney — an elected official —
Second, Plaintiff's report to Cal EMA regarding Defendant Mulligan's attempt to write a $900 check for an unauthorized purpose was a matter of public concern because she reported alleged misconduct by a government employee. Alpha Energy Savers, 381 F.3d at 926 (citing Ceballos v. Garcetti, 361 F.3d 1168, 1174 (9th Cir.2004)) ("when government employees speak about corruption, wrongdoing, misconduct, wastefulness, or inefficiency by other government employees, ... their speech is inherently a matter of public concern"); see also Voigt v. Savell, 70 F.3d 1552, 1560 (9th Cir.1995). Third, Plaintiff's report to the California Victim Compensation Board about suspected misappropriation of Emergency Revolving Fund monies also related to alleged wrongdoing by an elected official and, as such, was a matter of public concern. See Alpha Energy Savers, 381 F.3d at 926.
Nevertheless, Plaintiff alleges two instances of speech which are not a matter of public concern. First, Plaintiff and two of her subordinates complained to Defendant Mulligan about another employee creating a hostile working environment. Like in Coszalter, this conduct "was of no relevance to the public's evaluation of the performance of the government" and is, therefore, not a matter of public concern. Coszalter, 320 F.3d at 974 (plaintiff's report to management that his backhoe had been vandalized was not a matter of public concern). Second, Plaintiff complained to Defendant Mulligan regarding mold in the office, a staff member disregarding the chain of command, and other concerns. This activity related to individual grievances and personnel disputes that have no bearing on the public's ability to assess the stewardship of its resources or the performance of public officials. See id.
Public employees do not have First Amendment protection for statements made pursuant to their official duties. Anthoine v. North Central Counties Consortium, 605 F.3d 740, 745 (9th Cir.2010) (citing Garcetti v. Ceballos, 547 U.S. 410, 413, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)). Two bases for finding that a plaintiff's speech is made as a private citizen rather than within the scope of employment are that: (1) the plaintiff had no official duty to have made the expressive speech, or (2) the speech was not part of the tasks the employee is paid to perform. Eng, 552 F.3d at 1071. "While `the question of the scope and content of a plaintiff's
Plaintiff has not alleged whether or not the instances of her expressive speech were made within the scope of her professional duties, or rather, were spoken as a private citizen. If Plaintiff chooses to amend the Complaint, she must allege facts to adequately demonstrate that each instance of alleged expressive conduct was not part of her official duties, or was made as a private citizen. Moreover, in an amended § 1983 claim, Plaintiff shall identify only those acts that were entitled to First Amendment protection.
Defendants contend that Plaintiff's First Amendment claim should be dismissed for failure to allege any adverse employment action. Defendants rely on Nunez v. City of Los Angeles for the conclusion that an employee being "bad-mouthed and verbally threatened" does not constitute an adverse employment action. 147 F.3d 867, 875 (9th Cir.1998). However, the Ninth Circuit clarified and elaborated its Nunez ruling in Coszalter v. City of Salem when it stated that "[t]he essential holding of Nunez is simply that when an employer's response includes only minor acts, such as `bad-mouthing,' that cannot reasonably be expected to deter protected speech, such acts do not violate an employee's First Amendment rights." Coszalter, 320 F.3d at 976. Rather, the essential inquiry of a First Amendment claim is whether actions by a government employer "`chill the exercise of protected' First Amendment rights." Coszalter, 320 F.3d at 974-75 (quoting Rutan v. Republican Party, 497 U.S. 62, 73, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990)). The Coszalter court held that a plaintiff has established a valid First Amendment retaliation claim under § 1983 if the plaintiff can "establish that the actions taken by defendants were `reasonably likely to deter [them] from engaging in constitutionally protected speech.'"
Plaintiff identifies several actions by Defendants and asserts that these constitute adverse actions because when "taken in combination, are reasonably likely to deter employees to engage in constitutionally protected speech, since they are acts that threatened to undermine Plaintiff's ability to work productively in the office, and ultimately destroyed her past work efforts on behalf of the victims she serves." Opp. at 7. Plaintiff alleges that: (1) she was denied meetings with her direct supervisor, Defendant Mulligan, following the Plaintiff's and Defendants' disagreement about the legality of Defendant Peterson's
The Court finds that the foregoing allegations, taken together and read in the light most favorable to Plaintiff, sufficiently establish the element of adverse action. This is to say that such actions could reasonably likely deter Plaintiff or any other public employee "from engaging in constitutionally protected speech." Coszalter, 320 F.3d at 976; see also Thomas v. Carpenter, 881 F.2d 828, 829 (9th Cir.1989) (allegation sufficient to form First Amendment claim when plaintiff alleged he had been banned from attending meetings and participating as an evaluator in training exercises in retaliation for political activity); Allen v. Scribner, 812 F.2d 426, 428 (9th Cir.1987) (allegation sufficient to form the basis of a First Amendment claim when plaintiff was reassigned to another position and otherwise harassed for remarks he made to the press). Accordingly, Plaintiff need not amend the allegations related to this element of her claim.
Defendants argue that Plaintiff has not sufficiently pled that her expressive speech was a substantial motivating factor for Defendants' alleged retaliatory actions. To sufficiently plead this element, Plaintiff must first allege that Defendants were aware of her protected speech. Upon an allegation of Defendant's awareness, Plaintiff must also plead at least one of the following to sufficiently allege that the protected speech substantially motivated Defendants to undertake the adverse actions: (i) proximity in time between her expressive conduct and the allegedly retaliatory actions; (ii) that the defendants expressed opposition to her protected speech, either to her or others; or (iii) that Defendants' proffered explanations for their adverse actions were false and pretextual. Alpha Energy Savers, 381 F.3d at 929 (citing Coszalter, 320 F.3d at 977 and Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 751-52 (9th Cir. 2001)); see also Chaffee v. Chin, 2012 WL 1110012, at *8-9, 2012 U.S. Dist. LEXIS 46534, at *22-23 (N.D.Cal. Apr. 2, 2012). In assessing whether a plaintiff has made an adequate claim of retaliatory motive, a district court is justified in deciding the question based on the "totality of the facts." Coszalter, 320 F.3d at 978. Plaintiff must first allege that Defendants were
Plaintiff's claim is dismissed, though with leave to amend. If Plaintiff is able to cure this deficiency in an amended complaint, Plaintiff must also plead the following to sufficiently allege that Defendants were substantially motivated by Plaintiff's speech to undertake the adverse actions: (i) proximity in time between her expressive conduct and the allegedly retaliatory actions; (ii) that the defendants expressed opposition to her protected speech, either to her or others; or (iii) that defendants' proffered explanations for their adverse actions were false and pretextual. Alpha Energy Savers, 381 F.3d at 929. Plaintiff's claim of retaliatory motive will be assessed "in the light of the timing and the surrounding circumstances." Coszalter, 320 F.3d at 978.
Defendants argue that Plaintiff's entire Complaint should be dismissed because Plaintiff did not first comply with the California Tort Claims Act ("CTCA"), which provides that no civil suit may be brought against a public entity "until a written claim therefore has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board ..." Cal Gov't Code § 945.4; Motion 5-6. The "board" is the governing body of a local public entity, including a county. Cal. Gov't Code §§ 900.2, 900.4. The board must grant or deny a claim within forty-five days after it is presented or the claim is deemed rejected. Cal. Gov't Code § 912.4. The "requirement that a plaintiff must affirmatively allege compliance with the CTCA applies in federal court." Butler v. Los Angeles Cnty., 617 F.Supp.2d 994, 1001 (C.D.Cal.2008). Although certain suits are exempt from the CTCA (i.e. claims for workers' compensation, public benefits, public pensions), the CTCA does not identify whistleblower or intentional infliction of emotional distress claims in its list of exempt claims. See Cal. Gov't Code § 905. Accordingly, both Plaintiff's state law claims are subject to her compliance with the CTCA.
California Labor Code § 1102.5 is a "whistleblower" statute that protects an employee who discloses illegal conduct by prohibiting an employer from retaliating against an employee for such action. Defendants argue this claim must be dismissed for two independent reasons. First, Defendants argue that Plaintiff failed to exhaust her administrative remedies. Second, Defendants argue that Plaintiff failed to plead the essential elements of a claim arising under § 1102.5.
California Labor Code § 98.7 addresses the complaint process for an employee who alleges she has been the subject of a California Labor Code violation, including the whistleblower statute: "Any person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months after the occurrence of the violation." Cal. Lab.Code § 98.7(a) (emphasis added). The redress statute also provides that "The rights and remedies provided by this section do not preclude an employee from pursuing any other rights and remedies under any other law." Cal. Lab.Code § 98.7(f).
Defendants argue that Plaintiff's claim under California Labor Code § 1102.5 should be dismissed because Plaintiff did not plead that she brought a complaint before the Labor Commissioner, and therefore did not exhaust administrative remedies pursuant to California Labor Code § 98.7. Defendants cite Neveu v. City of Fresno, 392 F.Supp.2d 1159 (E.D.Cal.2005), where the court dismissed a claim despite California Labor Code § 98.7's use of the permissive word "may." See id. at 1180. The plaintiff in Neveu was a police officer who claimed he was retaliated against for reporting sexual harassment, racial discrimination, and cheating on police department exam. Neveu, 392 F.Supp.2d at 1166. The Neveu court relied on the California Supreme Court holding in Campbell v. Regents of the University of California that the plaintiff "should have exhausted the university's administrative remedies before proceeding to suit." 35 Cal.4th 311, 333, 25 Cal.Rptr.3d 320, 106 P.3d 976 (Cal.2005). The Neveu court inferred from Campbell that the plaintiff was required to exhaust available administrative remedies before the Labor Commissioner prior to filing suit. Neveu, 392 F.Supp.2d at 1180. Because the plaintiff failed to allege that he exhausted administrative remedies with the Labor Commissioner, the court granted the defendant's motion to dismiss. Id.
A court from this district has followed the reasoning of Lloyd, and held that a plaintiff need not exhaust administrative remedies before the Labor Commissioner because the language of § 98.7 is permissive, not mandatory. See Turner v. City & County of San Francisco, 892 F.Supp.2d 1188, 1201-02 (N.D.Cal.2012). The Turner court explained that, "[w]hile a number of federal district courts have extended Campbell to require exhaustion under § 98.7, this Court is unaware of any California state court decision that has so held." Turner, 892 F.Supp.2d at 1201-02. The court cited a post-Campbell federal district court opinion that distinguished Campbell's application to claims in front of the Labor Commissioner: "By its terms, Campbell only held that exhaustion of internal administrative remedies is required; there is no discussion in Campbell of exhaustion of administrative remedies before the Labor Commission." Creighton v. City of Livingston, 2009 WL 3246825, at *12, No. 08-1507, 2009 U.S. Dist. LEXIS 93720, at *31 (E.D.Cal. Oct. 7, 2009). At least one other district court agrees with Turner and Creighton in concluding that "there are no California decisions requiring exhaustion of a section 1102.5 claim under section 98.7. Campbell involved exhaustion of internal administrative procedures, as the opening paragraph of that decision makes clear, and makes no mention of section 98.7." Mango v. City of Maywood, 2012 WL 5906665, at *13, No. 11-5641, 2012 U.S. Dist. LEXIS 150929, at *41 (C.D.Cal. Oct. 5, 2012) (italics in original). The Court finds this reasoning persuasive. Accordingly, Plaintiff was not required to exhaust administrative remedies before the Labor Commissioner before filing her claim under Californian Labor Code § 1102.5 and this Court will consider the sufficiency of Plaintiff's allegations.
Defendants argue that, even if Plaintiff has pled facts sufficient to establish exhaustion of administrative remedies, Plaintiff failed to state a claim under California Labor Code § 1102.5. Section 1102.5 prohibits an employer from retaliating
A plaintiff engages in protected activity under § 1102.5 "where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation." Cal. Lab.Code § 1102.5(a). Defendants assert that Plaintiff's whistleblower claim fails because Plaintiff never alleges that she disclosed information about Defendants' violation of a state or federal law, and that even if Defendants' activities violated local county laws or protocols, local violations are not state or federal violations. Motion at 13. Defendants rely on Edgerly v. City of Oakland in asserting that "municipal statutes do not qualify as state statutes within the scope of § 1102.5(c) unless there is some enabling provision, for example, a municipal statute or rule stating that the intent of the city is to have its local laws treated as statewide statutes for purposes of this section." 211 Cal.App.4th at 1201, 150 Cal.Rptr.3d 425. Defendants argue that Plaintiff's allegations are, thus, insufficient to proceed as a matter of law. Motion at 13.
Plaintiff does not respond to this argument in her Opposition. Nevertheless, the Court finds Edgerly distinguishable from the case at bar. The plaintiff in Edgerly only alleged that her government employer violated local ordinances. Edgerly, 211 Cal.App.4th at 1199-1200, 150 Cal.Rptr.3d 425. There was no allegation that the plaintiff disclosed information for which the plaintiff had reasonable cause to believe was a violation of a state or federal statute. Id.
Here, Plaintiff alleges that Defendants' conduct "constituted preventative and punitive measures aimed at Plaintiff's lawful exercise of disclosing information to government agencies that Plaintiff had a reasonable cause to believe were violations of state statutes." Compl. ¶ 39 (emphasis added). Specifically, Plaintiff alleges that:
However, the Court finds that the nature of Plaintiff's reports to two state agencies — Cal EMA and the California Victim Compensation Board — that Defendants allegedly misused funds from a state agency gave Plaintiff reasonable cause to believe that she was reporting Defendants' violation of a state or federal statute. Thus, even if Plaintiff did not allege the exact state law she believe Defendants violated, the language of the statute — requiring that Plaintiff disclose what she has reasonable cause to believe is a violation of a state or federal statute — shows that Plaintiff's allegations suffice in this regard. Accordingly, Plaintiff has sufficiently pled facts to establish the first element of her prima facie whistleblower claim for her: (1) report to Cal EMA regarding the $900 check, and (2) report to the California Victim Compensation Board.
The element of adverse action is judged by a different standard under § 1102.5 than under the First Amendment analysis above. While the inquiry in the First Amendment context focuses on whether the adverse action was reasonably likely to deter protected speech, the inquiry here is whether the "adverse employment action is one that materially affects the terms, conditions, or privileges of employment." Beagle v. Rite Aid Corp., 2009 WL 3112098, at *6, No. 08-1517, 2009 U.S. Dist. LEXIS 87073, at *16-17 (N.D.Cal. Sept. 23, 2009) (citing Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028, 1036, 1050-52, 32 Cal.Rptr.3d 436, 116 P.3d 1123 (2005) (applying "materiality" test and rejecting "deterrence" test) and Patten, 134 Cal. App.4th at 1387-88, 37 Cal.Rptr.3d 113 (applying Yanowitz "materiality" test to § 1102.5 claim)). The materiality test looks to the "entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement in his or her career." Yanowitz, 36 Cal.4th at 1054, 32 Cal.Rptr.3d 436, 116 P.3d 1123. A plaintiff's allegations are to be considered "collectively under a totality of the circumstances approach." Id. at 1036, 32 Cal.Rptr.3d 436, 116 P.3d 1123.
Plaintiff has identified multiple actions by Defendants that "taken in combination... are acts that threatened to undermine Plaintiff's ability to work productively in the office, and ultimately destroyed her past work efforts on behalf of the victims she serves." Opp. at 7. Plaintiff alleges that: (1) she was denied meetings with her direct supervisor, Defendant Mulligan, following the Plaintiff's and Defendants' disagreement about the legality of Defendant Peterson's timesheet correction plan (Compl. ¶ 15); (2) Defendant Mulligan deprived Plaintiff of the opportunity to maintain a temporary staff position on a grant Plaintiff manages (Id. ¶ 17); (3) she was excluded from a study of the office's strengths and weaknesses despite being part of the management team and being told that all of the management team would be included (Id. ¶ 21); (4) Defendant Mulligan responded to Plaintiff's email about mold and personnel issues with an "accusatory investigation" that included a directive for Plaintiff to document her response to a sexual harassment incident that had occurred five years earlier (Id. ¶ 25-26); and, (5) Defendants withdrew
Finally, Plaintiff must plead a causal link between her disclosure of what she had reasonable cause to believe constituted Defendants' illegal conduct, and Defendants' adverse actions. Patten, 134 Cal.App.4th at 1384, 37 Cal.Rptr.3d 113. Causation may be inferred from circumstantial evidence, including "the employer's knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision." Morgan v. Regents of Univ. of California, 88 Cal.App.4th 52, 69-70, 105 Cal.Rptr.2d 652 (Cal.App. 1st Dist.2000) (quoting Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir.1988)). The employer's awareness is an essential component of the causal link. Morgan, 88 Cal. App.4th at 70, 105 Cal.Rptr.2d 652.
As discussed above in the First Amendment analysis of retaliatory motive, Plaintiff does not sufficiently allege that Defendants were aware of either instance of her protected conduct that survived the first prong of the § 1102.5 analysis: (1) reporting to Cal EMA regarding the $900 check, and (2) reporting to the California Victim's Compensation Board. Without an allegation that Defendants were aware that Plaintiff engaged in protected activity, there can be no basis to find a causal link between the protected activity and adverse action. For this reason, Plaintiff's whistleblower claim is DISMISSED WITH LEAVE TO AMEND.
To state a claim for intentional infliction of emotional distress ("IIED"), a plaintiff must allege four elements: (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress. Cole, 43 Cal.3d at 170, 233 Cal.Rptr. 308, 729 P.2d 743. Here, Plaintiff alleges that Defendants sought to "undermine the effectiveness of the employee responsible for procuring state monies for indigent members of the community, based upon the grant custodian's refusal to violate the law." Opp. at 9-10. Plaintiff insists that Defendants' actions are "atrocious, utterly intolerable,
The Court does not disregard Plaintiff's allegations that Defendants acted improperly. Nevertheless, the nature of Plaintiff's allegations are insufficient as a matter of law to state claim for IIED. "Conduct, to be `outrageous,' must be so extreme as to exceed all bounds of that usually tolerated in a civilized society." Schneider v. TRW, Inc., 938 F.2d 986, 992 (9th Cir.1991) (holding that a supervisor screaming and yelling while criticizing an employee's performance and threatening to throw the employee out of the department, accompanied by threatening gestures, is not sufficient to establish an IIED claim). Even assuming Plaintiff's allegations of Defendant's retaliatory conduct to be true, the Court simply cannot find that the actions alleged could possibly constitute extreme and outrageous conduct. Nor has Plaintiff alleged that Defendants intended to cause her severe emotional distress. Although Plaintiff may have alleged facts to meet the third and fourth elements of this claim, this is insufficient. Accordingly, Plaintiff's fifth cause of action for IIED is DISMISSED WITH PREJUDICE. See Saul v. United States, 928 F.2d 829, 843 (9th Cir.1991) ("A district court does not err in denying leave to amend where the amendment would be futile.").
For the reasons stated above, Defendants' Motion to Dismiss is GRANTED. Should Plaintiff choose to file an amended complaint, Plaintiff must do so within thirty (30) days of the file an amended complaint, the clerk is directed to close the file.
IT IS ORDERED.
