Enriquez v. City of Sierra Madre CA2/7

Filed 10/16/13 Enriquez v. City of Sierra Madre CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
KAILYN ENRIQUEZ, B240916
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. GC048115)
v.
CITY OF SIERRA MADRE,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County, Joseph F.
De Vanon, Judge. Affirmed.
Ernster Law Offices, John H. Ernster and Elizabeth A. Ernster for Plaintiff and
Appellant.
Kessel & Associates, Elizabeth M. Kessel, Alexis N. Cirkinyan and James H.
Demerjian for Defendant and Respondent.
_______________________
INTRODUCTION
Plaintiff Kailyn Enriquez appeals from an order of dismissal entered after the trial
court sustained defendant City of Sierra Madre’s demurrer to her first amended complaint
without leave to amend.1 We affirm.
FACTS
On October 13, 2007 Enriquez applied for a position as a firefighter for the Sierra
Madre Fire Department (SMFD), after completing her firefighter training in July 2007.
On January 28, 2008 City of Sierra Madre City Manager Elaine Aguilar and SMFD Chief
Stephen Heydorff appointed Enriquez to work as a probationary volunteer firefighter for
the SMFD. Enriquez eventually completed her probationary period as a volunteer
firefighter.
The City hires and fires volunteer firefighters, sets the rules and regulations for
their work, requires them to work specific shifts and to arrive on time, and requires them
to report to supervisors and to work within the framework of the SMFD. Volunteer
firefighters also receive training and are covered by workers’ compensation. The City
keeps records of the volunteer firefighters’ service. It pays volunteer firefighters a
stipend of $1 per day, paid every 90 days. It also pays voluntary firefighters
1 Enriquez purports to appeal from an order entered on March 27, 2012, the filing
date of the notice of entry of order of dismissal. Because she unquestionably intended to
appeal from the order of dismissal, we construe her notice of appeal as from that
appealable order, rather than the notice of entry. (See In re Marriage of Macfarlane &
Lang (1992) 8 Cal. App. 4th 247, 252-253; Cal. Rules of Court, rule 8.100(a)(2) [“notice
of appeal must be liberally construed”]; see also In re the Marriage of Kerry (1984) 158
Cal. App. 3d 456, 460, fn. 1 [“notice of appeal which incorrectly designates a judgment
instead of an order after an appealable judgment may be construed as an appeal from the
order after judgment, when respondent is not misled”].)
2
approximately $33 per day when “hired out” with a SMFD strike team of firefighters sent
to assist other agencies in fighting non-local large-scale fires.
On April 10, 2008 Enriquez began the background check procedure required for
employment by the Sierra Madre Police Department (SMPD). After learning that she had
been accepted to the training program for employment in the SMPD dispatch office, she
resigned from her other job with FirstMed Ambulance. She submitted to a polygraph test
in early May, was fingerprinted, and underwent a psychological examination in early
June in anticipation of her employment with the SMPD.
Meanwhile, Enriquez had witnessed incidents that several firefighters in the
SMFD claimed involved sexual harassment. The SMFD scheduled a mandatory
interview for Enriquez on June 24, 2008 regarding these incidents. She was unable to
attend the interview at that time, however, because the SMFD sent her out with a strike
team. The SMFD rescheduled the interview for July 14.
Enriquez was scheduled to begin her training in the SMPD on June 30, 2008, but
she obtained permission to reschedule her start date because she was still serving on the
SMFD strike team. Enriquez picked up her police department uniform on July 14. On
August 1 Enriquez received a phone call from SMPD Chief Marilyn Diaz, who stated the
police department was putting Enriquez’s employment on hold pending resolution of
issues regarding Enriquez’s status with the SMFD.
On August 2, 2008 the SMFD issued Enriquez a disciplinary notice that wrongly
accused her of ignoring an admonishment not to discuss her interview or the investigation
with anyone but her “authorized representative.” The notice stated that she had created
an uncomfortable working environment by discussing the incidents with City staff. The
notice stated that Enriquez was “[d]ishonest, [d]isobedient; [took a]ctions that adversely
affected the safety of employees or others; . . . [engaged in h]arassment of fellow
employees; [and engaged in v]iolation of any city policy.”
On August 22, 2008 Enriquez wrote a memorandum to the city manager pointing
out the errors and inconsistencies in the disciplinary notice. She also stated that she had
been singled out to receive a disciplinary notice. She said that she did not want an
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unwarranted disciplinary notice in her file to adversely affect her future employment.
The City refused to remove the disciplinary notice.
Enriquez’s prospective employment with the SMPD, originally scheduled to begin
August 4, 2008, was postponed initially for six months and then indefinitely. The SMPD
ultimately withdrew its employment offer “as a result of the Disciplinary Notice and
subsequent action.”
At the end of 2009 Captain Kristine Lowe of the SMFD informed Enriquez via
Facebook message that the SMFD was placing Enriquez on leave from her position as
volunteer firefighter because she had not yet obtained her Emergency Medical
Technician certification/accreditation (EMT certification). On January 1, 2010 Enriquez
went on voluntary indefinite leave.
On February 10, 2010 Enriquez received a memorandum by certified mail from
the City stating that she did not have a valid California EMT certification, as required by
a policy adopted by the SMFD prior to July 1, 2008. The memorandum stated that
Enriquez had to obtain the certification by March 1, 2010. The SMFD placed her on
administrative leave and notified her that she would be suspended and subject to
disciplinary action if she did not obtain certification by March 1. Enriquez was unaware
of the certification requirement prior to receiving the memorandum. The EMT training
requirement had not been enforced in the two years Enriquez had been a volunteer
firefighter.
On February 23, 2010 the City sent Enriquez a second memorandum stating that
she would be suspended from active duty on March 1, 2010 if she did not provide the
City with her certification and basic life support card by February 28. Enriquez,
however, was unable to comply with this demand within such a short time period,
because certification requires completion of an EMT training course, which typically is
offered as a semester-long course at a city college. On March 5, 2010 the City sent
Enriquez a letter by certified mail stating that she had been placed on suspension from
active field duty and that she would be terminated if she did not provide the City with her
EMT certification by June 1.
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Enriquez attempted to enroll in the first available EMT training course upon
learning of the certification requirement, but all of the classes were full and there was no
waiting list. She “was slated” to take the EMT training course at Pasadena City College
in the spring semester, which began in February and ended in June 2010. Although the
course was full, she could “wait and ‘add’ the course a few days after it had begun and
some spots became available.”
At the end of February 2010 Enriquez learned that she was pregnant. Her doctor
subsequently diagnosed her with placenta previa, a medical condition that threatens a
woman’s ability to carry a child to term successfully. Her doctor imposed severe
movement restrictions and prohibited her from lifting, standing, exercising, going up
stairs, and other strenuous movement. As a result, Enriquez had to postpone the EMT
training course until after she had given birth to her child.
Based on the expected duration of her pregnancy and maternity leave, and the
availability of an EMT training course, Enriquez did not anticipate that she would be able
to return to work until the spring of 2011. On June 6, 2010 Enriquez notified the City of
the necessity of an extended leave due to her pregnancy.
On August 5, 2010 the City sent Enriquez a letter informing her that she had been
terminated as a SMFD volunteer firefighter as of June 1 because she had not obtained her
EMT certification. Enriquez did not receive this letter until the end of August or the
beginning of September, and it was in an envelope that had been torn open. The City’s
Personnel Action Form was signed August 30, and reflected Enriquez’s voluntary
separation effective June 1, 2010.
Enriquez immediately contacted the City and spoke to personnel analyst Miguel
Hernandez. She explained her medical condition and that the physical restrictions
prevented her from completing EMT training. She said she had already told the City she
needed to extend her leave of absence due to her pregnancy, but the City had been
unresponsive. Enriquez asked that the City reverse her termination, remove the
termination letter from her personnel file, and keep her on indefinite or suspended leave
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pending resolution of the issue. Hernandez said he would talk to the city manager about
her request.
A short time later, Hernandez called Enriquez to let her know that the City had
denied her request to reverse her termination. Enriquez requested that her record reflect a
resignation so she would not have a “black mark” that would affect prospective future
employment with other fire departments. Again, Hernandez said he would speak to the
city manager. He later informed Enriquez that the City had denied her request.
On June 22, 2011 Enriquez returned to the firehouse to retrieve personal property
she had left there. Several items were missing. Enriquez believed they had been given to
other firefighters for their use.
On December 10, 2010 Enriquez filed a complaint with the U.S. Equal
Employment Opportunity Commission (EEOC). On June 28, 2011 the EEOC dismissed
the complaint on the ground that there was no employer-employee relationship and
notified Enriquez of her right to sue.
On April 11, 2011 Enriquez also filed a complaint with the California Department
of Fair Employment and Housing (DFEH). The DFEH issued Enriquez a right to sue
notice, stating that it was closing its case because the EEOC would be responsible for
conducting an investigation.
PROCEDURAL BACKGROUND
Enriquez’s operative first amended complaint contained 22 causes of action:
1. Wrongful termination-breach of contract, based on an implied employment
contract created by the parties’ conduct and breached by her termination without good
cause based on Enriquez’s gender and pregnancy;
2. Wrongful discharge in violation of public policy, based on the City’s violation
of the Fair Employment and Housing Act (FEHA, Gov. Code, § 12940 et seq.) in
terminating Enriquez based on her gender, pregnancy and temporary disability;
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3. Wrongful constructive termination in violation of public policy, alleging that
even if Enriquez were not an employee subject to termination, the City’s termination of
her services based on her gender, pregnancy, and temporary disability resulted in a “black
mark” on her record preventing her from being hired by another fire department;
4. Disparate treatment in violation of FEHA, based on Enriquez’s gender,
pregnancy, and temporary disability;
5. Disparate impact in violation of FEHA, based on the City’s failure to prevent
discrimination based on Enriquez’s gender, pregnancy, and temporary disability;
6. Failure to take all reasonable steps to prevent sex discrimination in violation of
FEHA;
7. Violation of the Family Rights Act (Gov. Code, § 12945 et seq.) by denying
Enriquez’s request for maternity leave;
8. Sex discrimination in violation of the federal Pregnancy Discrimination Act (42
U.S.C. §§ 2000e-2(a), 2000e(k));
9. Sex discrimination in employment by municipalities or local governmental
entities in violation of the federal Civil Rights Act of 1871 (42 U.S.C. § 1983);
10. Sex discrimination in violation of the federal Civil Rights Act, title VII (42
U.S.C. § 2000e et seq.), disparate treatment;
11. Sex discrimination in violation of the federal Civil Rights Act, title VII,
disparate impact;
12. Disability discrimination in violation of FEHA, disparate treatment, based on
Enriquez’s condition of placenta previa as a disability;
13. Disability discrimination, failure to provide reasonable accommodation in
violation of FEHA, based on Enriquez’s condition of placenta previa as a disability;
14. Failure to take all reasonable steps to prevent discrimination against disabled
persons in violation of FEHA;
15. Disability discrimination in violation of the federal Americans With
Disabilities Act (ADA, 42 U.S.C. § 12101 et seq.), disparate treatment;
16. Disability discrimination in violation of the ADA, disparate impact;
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17. Disability discrimination in violation of the ADA, failure to provide
reasonable accommodation;
18. Hostile work environment in violation of FEHA, conduct directed at
Enriquez, based on harassment and wrongful termination due to her involuntary
affiliation with a sexual harassment investigation;
19. Retaliation in violation of FEHA, based on the disciplinary notice which was
issued in retaliation for her involuntary involvement in the sexual harassment
investigation;
20. Breach of the implied covenant of good faith and fair dealing in the implied
employment contract between Enriquez and the City through wrongful termination based
on Enriquez’s pregnancy and placenta previa;
21. Conversion of Enriquez’s personal property left in the firehouse; and
22. Declaratory relief, seeking a declaration that the City is obligated to remove
the termination notice from Enriquez’s personnel file.
The City filed a demurrer. As to the employment-related causes of action (causes
of action 1-20 and 22), the City argued that Enriquez did not receive “significant
remuneration” for her services and therefore was not an employee and could not state
causes of action for employment discrimination. The City also argued that because the
allegations of the complaint showed that the City had advised her of the need to obtain
EMT certification before she informed the City that she was pregnant, she could not state
causes of action for discrimination based on her pregnancy (causes of action 1-18). The
City also argued that Enriquez could not state federal disability discrimination causes of
action because pregnancy is not a disability under the ADA (causes of action 15-17). The
City further argued that Enriquez’s failure to comply with the government claim filing
statute (Gov. Code, § 945.4) barred her common law causes of action (causes of action 1-
3, 20-22), that the City was immune from her causes of action for termination or
retaliation in violation of public policy (causes of action 2-3), and that her failure to
exhaust her administrative remedies barred her causes of action under FEHA and title VII
(causes of action 4-8, 12-14, 17-19). As to Enriquez’s contract-based causes of action
8
(causes of action 1, 20), the City argued that public employment is statutory, not
contractual. Finally, the City argued that Enriquez’s participation in the 2008 sexual
harassment investigation was too attenuated to support a cause of action for retaliation
(cause of action 19).
The trial court sustained the City’s demurrer without leave to amend. Enriquez
appeals.
DISCUSSION
A. Standard of Review
On appeal from an order dismissing an action following the sustaining of a
demurrer without leave to amend, we apply the de novo standard of review. (Committee
for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal. 4th 32, 42;
Arce v. Childrens Hospital Los Angeles (2012) 211 Cal. App. 4th 1455, 1470.) “[W]e
review the trial court’s sustaining of a demurrer without leave to amend de novo,
exercising our independent judgment as to whether a cause of action has been stated as a
matter of law and applying the abuse of discretion standard in reviewing the trial court’s
denial of leave to amend.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th
1457, 1469.) We assume the truth of the properly pleaded factual allegations in the
complaint but do not assume the truth of the contentions, deductions or conclusions of
law. (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal. App. 4th 1402, 1411; see
also Campbell v. Regents of University of California (2005) 35 Cal. 4th 311, 320.) We
first “‘determine whether the complaint states facts sufficient to state a cause of action. If
the court sustained the demurrer without leave to amend, as here, we must decide whether
there is a reasonable possibility the plaintiff could cure the defect with an amendment.’”
(Arce, supra, at pp. 1470-1471.) “‘As a general rule, if there is a reasonable possibility
the defect in the complaint could be cured by amendment, it is an abuse of discretion to
sustain a demurrer without leave to amend.’” (San Mateo Union High School Dist. v.
County of San Mateo (2013) 213 Cal. App. 4th 418, 441.) “‘Nevertheless, where the
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nature of the plaintiff’s claim is clear, and under substantive law no liability exists, a
court should deny leave to amend because no amendment could change the result.’”
(Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal. App. 4th 390, 401.) “‘The burden
is on [the appellant] to demonstrate the manner in which the complaint might be
amended, and the appellate court must affirm the judgment if it is correct on any
theory.’” (Shuster v. BAC Home Loans Servicing, LP (2012) 211 Cal. App. 4th 505,
509.)2
B. Whether Enriquez Was an Employee for Purposes of Her Claims
The leading case of Mendoza v. Town of Ross (2005) 128 Cal. App. 4th 625, like
this case, involved a plaintiff who served as a volunteer for a municipality. The plaintiff
in Mendoza sued under FEHA for wrongful termination in violation of public policy and
disability discrimination. (Id. at pp. 628-629.) The trial court sustained the defendant’s
demurrer on the ground the plaintiff “was an uncompensated volunteer and not an
‘employee’ for purposes of imposition of liability for unlawful employment practices
under FEHA.” (Id. at p. 629.)
The “key legal issue” on appeal was whether the plaintiff was an employee and
therefore protected from wrongful termination and employment discrimination under
FEHA. (Mendoza v. Town of Ross, supra, 128 Cal.App.4th at p. 631; see Shephard v.
Loyola Marymount Univ. (2002) 102 Cal. App. 4th 837, 842 [“[i]n order to recover under
the discrimination in employment provisions of the FEHA, the aggrieved plaintiff must
be an employee”].) The court noted that FEHA does not clearly define who qualifies as
an employee: “As observed in Shephard, supra, 102 Cal.App.4th at pages 867-847, the
statutory definition of ‘employee’ found at [Government Code] section 12926,
2 We note that many of Enriquez’s contentions on appeal focus on what she claims
the “City failed to establish” in its demurrer. As stated above, we review the allegations
of the complaint de novo and whether they state a cause of action, not what the City
established or failed to establish in its demurrer.
10
subdivision (c), does not actually define who is an employee under the FEHA; it merely
excludes persons employed by close relatives and those ‘employed’ by nonprofit
sheltered workshops and rehabilitation facilities. Therefore, like the Shephard court, we
conclude that the FEHA definitional provision is not particularly helpful in determining
under what circumstances one may be considered to be an employee for purposes of the
FEHA.” (Mendoza, supra, at p. 632.)
The court found more helpful the definition of “employee” in regulations
promulgated by the DFEH, which defines “an employee as ‘[a]ny individual under the
direction and control of an employer under any appointment or contract of hire or
apprenticeship, express or implied, oral or written.’ (Cal. Code Regs., tit. 2, § 7286.5,
subd. (b).)” (Mendoza v. Town of Ross, supra, 128 Cal.App.4th at p. 632.) The court
stated two reasons for rejecting the plaintiff’s assertion that he was an employee under
this definition “because he was ‘appointed’ to his volunteer position.” (Id. at p. 633.)
First, the controlling municipal ordinance gave the Town Council the exclusive authority
to make employment appointments, and the Town Council did not appoint the plaintiff to
his position. (Ibid.) Second, there could be no implied employment contract because
public employment is governed by statute, not contract. (Id. at p. 634.)
The court also observed that “absent applicable California case law on the issue of
whether the FEHA applies to volunteers, it is instructive to look to federal law.
‘“‘Because the antidiscrimination objectives and relevant wording of title VII . . . [and
other federal antidiscrimination statutes] are similar to those of the FEHA, California
courts often look to federal decisions interpreting these statutes for assistance in
interpreting the FEHA.’” [Citation.]’ [Citations.] [¶] Title VII succinctly defines
‘employee’ as an ‘individual employed by an employer.’ (42 U.S.C. § 2000e(f).) The
first prong of the title VII test in determining if someone is an employee requires the
plaintiff to prove he or she was hired by the putative employer. [Citation.] To do so, the
courts must look to ‘“the thirteen factors articulated by the Supreme Court in Community
for Creative Non-Violence v. Reid [1989] 490 U.S. 730 [104 L. Ed. 2d 811, 109 S. Ct.
2166] . . .” to determine whether an employment relationship exists. [Citation.]’
11
[Citation.] However, to satisfy the hiring prong, a purported employee must establish the
existence of remuneration, in some form, in exchange for work. [Citation.]” (Mendoza
v. Town of Ross, supra, 128 Cal.App.4th at pp. 635-636.) Like the Mendoza court, courts
in other jurisdictions have held that individuals who are not compensated for their
services are not employees for purposes of title VII and similar statutes. (See, e.g., Juino
v. Livingston Parish Fire Dist. No. 5 (5th Cir. 2013) 717 F.3d 431, 439 [adopting the
“threshold-remuneration test” because it is “uniquely suited to assessing a plausible
employment relationship within the volunteer context”]; O’Connor v. Davis (2d Cir.
1997) 126 F.3d 112, 115-116 [unpaid intern]; Keller v. Niskayuna Consol. Fire Dist. 1
(N.D.N.Y. 1999) 51 F. Supp. 2d 223, 232 [volunteer firefighters]; City of Fort Calhoun v.
Collins (Neb. 1993) 500 N.W.2d 822, 826 [volunteer firefighters].)3
The Mendoza court did note that “substantial indirect compensation can satisfy the
threshold requirement of remuneration for purposes of employee status under title VII. If
not direct salary, substantial benefits which are not merely incidental to the activity
performed, such as health insurance, vacation or sick pay, are indicia of employment
status. [Citation.] Thus, volunteer firefighters in Pietras v. Board of Fire Com’rs of
[Farmingville] (2d Cir. 1999) 180 F.3d 468 were entitled to employee status, in part,
based on their receipt of significant benefits, such as disability pensions, survivors’
benefits, group life insurance, and scholarships for dependent children of deceased
firefighters. [Citation.]” (Mendoza v. Town of Ross, supra, 128 Cal.App.4th at p. 636,
italics and fn. omitted; see Haavistola v. Community Fire Co. of Rising Sun (4th Cir.
1993) 6 F.3d 211, 221, citations & fn. omitted [factual issues precluded summary
judgment on issue of whether the volunteer firefighter was an employee, where the
volunteer received a “state-funded disability pension, . . . survivors’ benefits for
3 In Juino, the Fifth Circuit joined the Second, Fourth, Eighth, Tenth, and Eleventh
Circuits in adopting the “threshold-remuneration test,” distinguishing the Sixth and Ninth
Circuits’ view that remuneration is a factor but not a necessary or dispositive one. (Juino
v. Livingston Parish Fire Dist. No. 5, supra, 717 F.3d at pp. 434-439.)
12
dependents, . . . scholarships for dependents upon disability or death, . . . bestowal of a
state flag to family upon death in the line of duty, . . . benefits under the Federal Public
Safety Officers’ Benefits Act when on duty, . . . group life insurance, . . . tuition
reimbursement for courses in emergency medical and fire service techniques, . . .
coverage under Maryland’s Workers Compensation Act, . . . tax-exemptions for
unreimbursed travel expenses, . . . ability to purchase, without paying extra fees, a special
commemorative registration plate for private vehicles, . . . and access to a method by
which [the volunteer firefighter] may obtain certification as a paramedic”].)
By contrast, in Keller v. Niskayuna Consol. Fire Dist. 1, supra, 51 F. Supp. 2d 223,
the only benefit provided to the volunteer firefighters was participation in a service
awards program, which conferred a financial benefit upon reaching a certain age if the
volunteer accumulated a specified amount of service credit. (Id. at p. 231.) The court
found that the service awards program did “not provide a guarantee of consideration for
the work performed,” because a volunteer might perform work but not accumulate the
requisite amount of service credit and therefore receive nothing. (Id. at p. 232.) Because
the volunteers did not receive compensation for their work, the court concluded that they
were not employees. (Ibid.) Similarly, in Juino, the volunteer firefighter suing for sexual
harassment received $78 for responding to 39 calls, “a life insurance policy, a uniform
and badge, and emergency/first responders’ training.” (Juino v. Livingston Parish Fire
Dist. No. 5, supra, 717 F.3d at p. 439.) The Juino court held that these benefits were
“unlike the significant indirect benefits received by the volunteer firefighters in
Haavistola and Pietras,” and that “as a matter of law” the plaintiff “was not an
‘employee’ for purposes of Title VII because she has failed to make a threshold showing
of remuneration.” (Id. at pp. 439, 440.)
Enriquez suggests that her receipt of workers’ compensation benefits was
sufficient to give her employee status. She relies on a statement and example from the
EEOC Compliance Manual: “Volunteers usually are not protected ‘employees.’
However, an individual may be considered an employee of a particular entity if, as a
result of volunteer service, s/he receives benefits such as a pension, group life insurance,
13
workers’ compensation, and access to professional certification, even if the benefits are
provided by a third party. The benefits constitute ‘significant remuneration’ rather than
merely the ‘inconsequential incidents of an otherwise gratuitous relationship.’”
(http://www.eeoc.gov/policy/docs/threshold.html#2-III-A-1-c, fns. omitted [as of Oct. 16,
2013].) The EEOC then gives an example, which according to Enriquez illustrates “a
situation very similar to” her case: “CP was terminated from her position as a
probationary volunteer firefighter after she failed an agility test. She alleges that the test
has a disparate impact on women. Respondent claims that CP was not an employee, and,
therefore, not protected by Title VII. State X provides volunteer firefighters up to
$400/month in state retirement benefits (after five years of service); death and survivors
benefits; group life insurance; disability and rehabilitation benefits; health care benefits;
and tuition reimbursement for courses in emergency medical and fire service techniques.
These benefits are ‘significant remuneration’ sufficient to create an employment
relationship between CP and Respondent.”
(http://www.eeoc.gov/policy/docs/threshold.html#2-III-A-1-c [as of Oct. 16, 2013].)4
Enriquez’s situation is very different from that of the volunteer firefighter in the
EEOC example. Enriquez did not receive any retirement, health care, insurance, tuition
reimbursement or other similar benefits that would support a finding that she was an
employee. (See Mendoza v. Town of Ross, supra, 128 Cal.App.4th at p. 636; Juino v.
Livingston Parish Fire Dist. No. 5, supra, 717 F.3d at p. 439; Pietras v. Board of Fire
Com’rs of Farmingville, supra, 180 F.3d at p. 473.)
4 EEOC guidelines are not binding authority on California courts when interpreting
FEHA. They may be persuasive, however, when interpreting similar state
antidiscrimination provisions. (Wills v. Superior Court (2011) 195 Cal. App. 4th 143,
165.) “‘“‘[W]hile not controlling upon the courts by reason of their authority, [the EEOC
guidelines] do constitute a body of experience and informed judgment to which courts
and litigants may properly resort for guidance’” [citation].’” (Ibid., quoting from Meritor
Savings Bank v. Vinson (1986) 477 U.S. 57, 65 [106 S. Ct. 2399, 91 L. Ed. 2d 49].)
14
Moreover, the court in Estrada v. City of Los Angeles (2013) 218 Cal. App. 4th 143,
which involved a volunteer reserve police officer, recently rejected the argument that
receipt of workers’ compensation benefits confers employee status. In Estrada, the City
of Los Angeles included volunteer reserve police officers within the definition of
employee for purposes of workers’ compensation coverage. (Id. at p. 155.) The court
stated: “Clearly, the City has made a policy decision to extend such benefits to
volunteer[] reserve officers, who serve gratuitously and put themselves in harm’s way to
protect the community. [¶] However, the consequence of this policy decision by the City
is not to convert these uncompensated volunteers into municipal employees for all
purposes. The fact the City provides volunteer reserve officers with workers’
compensation benefits if they sustain industrial injuries does not change the fact they
serve without remuneration. The City’s workers’ compensation benefits, similar to the
recurring $50 reimbursement for a volunteer’s out-of-pocket expenses, simply serve to
make a volunteer whole in the event the volunteer were to sustain injury while
performing his or her duties. Irrespective of the significant value of workers’
compensation benefits, the purpose of workers’ compensation is ‘to compensate for
losses resulting from the risks to which the fact of employment in the industry exposes
the employee.’ [Citation.] The fact the City ensures that unpaid volunteers such as [the
plaintiff] are compensated for industrial injuries does not mean that such persons are
deemed employees for purposes of the FEHA.” (Ibid.)5
Enriquez also relies on a provision in the EEOC Compliance Manual that states:
“A volunteer may also be covered by the EEO statutes if the volunteer work is required
for regular employment or regularly leads to regular employment with the same entity.
5 Enriquez attempts to avoid the holding of Estrada by distinguishing her situation
from that of the plaintiff in Estrada by pointing out that the City of Los Angeles has a
municipal code while the City of Sierra Madre does not. This distinction does not have
any bearing on the holding of Estrada that the receipt of workers’ compensation benefits
alone is not sufficient remuneration to give a volunteer the status of an employee for
purposes of FEHA or other statutes barring discrimination against employees.
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In such situations, discrimination by the respondent operates to deny the charging party
an employment opportunity.” The EEOC gives this example: “CP is a volunteer
counselor with the Respondent, a public interest organization, and alleges that she was
subjected to sexual harassment by her supervisor and coworkers. Respondent maintains
that CP is not its employee, and, therefore, not covered by Title VII. While volunteer
service is not a prerequisite to employment, former volunteers are given preferential
treatment when competing for vacancies against applicants who have not volunteered
with Respondent. Most of Respondent’s regular, paid counselors initially performed
volunteer work for Respondent. In this case, volunteer service regularly leads to
employment with Respondent. Therefore, CP is protected by the EEO statutes.”
(http://www.eeoc.gov/policy/docs/threshold.html#2-III-A-1-c, fn. omitted [as of Oct. 16,
2013].)
Enriquez alleges that “employment as a volunteer firefighter with the SMFD
regularly led to employment as a daytime salaried engineer in the SMFD,” and that
“SMFD volunteer firefighters received preferential consideration for hiring as daytime
salaried engineers when a vacancy occurred in the SMFD.” Enriquez, however, has not
provided any case authority in support of her contention that a preference afforded a
volunteer in applying for a compensated employment position qualifies as “substantial
indirect compensation” for purposes of qualifying a volunteer for FEHA or title VII
protection. Nor has she cited a case that relied on this provision of the EEOC
Compliance Manual to hold that “regularly leading to regular employment” can elevate a
plaintiff from volunteer to employee status for purposes of the antidiscrimination laws.
We have not found any such cases. A volunteer subject to discrimination might be able
to state a claim for discriminatory hiring practices. (See Gov. Code § 12940, subd. (a);
Harris v. City of Santa Monica (2013) 56 Cal. 4th 203, 218 [title VII makes it unlawful
for any employer to refuse to hire an individual because of sex]; Esberg v. Union Oil Co.
(2002) 28 Cal. 4th 262, 265 [FEHA prohibition against discrimination extends to hiring];
Vickery v. Minooka Volunteer Fire Dept. (N.D.Ill. 1997) 990 F. Supp. 995, 1000
[volunteer stated a claim for sex discrimination against fire department that “refused to
16
hire her as a paid employee because she was a woman”].) Enriquez, however, never
asserted such a claim among her 22 causes of action, nor has she ever requested, in the
trial court or this court, leave to amend to allege a claim for discrimination in hiring. In
any event, even if the possibility of volunteer work leading to regular employment or
preferential consideration in hiring could qualify as substantial compensation, Enriquez
must still plead facts sufficient to state a cause of action. As we explain below, she failed
to do so.
C. Whether Enriquez Pleaded Facts Sufficient To State Causes of Action for
Discrimination Based on Gender, Pregnancy, or Disability
Enriquez argues that “[t]he sex, pregnancy and disability discrimination occurred
when City terminated [Enriquez] on some date uncertain following [Enriquez’s] notifying
City of her pregnancy.” Enriquez’s chronology, however, precludes these claims. The
City notified Enriquez on March 5, 2010 that it would terminate her as of June 1, 2010 if
she did not obtain EMT certification. Enriquez did not notify the City of her need for an
extended leave of absence until June 6, 2010, after the specified termination date.
Enriquez cites no authority to support a claim of discrimination based on the failure to
change or rescind a non-discriminatory decision to terminate an employee based on the
employee’s subsequent notification to the employer that she was disabled.
Moreover, the law is to the contrary. In order to prove discrimination, the
employee must show that the employer was aware of the basis for the employee’s claim
prior to making the decision to take adverse employment action. In Avila v. Continental
Airlines, Inc. (2008) 165 Cal. App. 4th 1237, which involved a claim of disability
discrimination, the court stated: “Evidence that a decision maker learned of a plaintiff’s
disability after deciding to take adverse employment action . . . is irrelevant to
determining whether the decision maker acted from a discriminatory animus. (Brundage
v. Hahn [(1997)] 57 Cal.App.4th [228,] 236-237 [decision maker must be aware of
disability ‘when the adverse employment decision was made’]; see also Hedberg v.
Indiana Bell Telephone Co., Inc. [(7th Cir. 1995)] 47 F.3d [928,] 931-932 [no
17
discrimination when decision maker was informed of plaintiff’s disability after making
decision to discharge him].)” (Id. at p. 1251; see Geraci v. Moody-Tottrup, Intern., Inc.
(3rd Cir. 1996) 82 F.3d 578, 582 [no prima facie case of pregnancy discrimination where
evidence showed defendant decided to lay plaintiff off before it knew of her pregnancy].)
Enriquez has failed to meet her burden of demonstrating that the trial court erred
in sustaining the City’s demurrer to her causes of action based on gender, pregnancy, and
disability discrimination under state and federal law (causes of action 4-17). Enriquez
also has not met her burden of demonstrating how she could amend her complaint to state
these causes of action. Therefore, the trial court did not abuse its discretion in sustaining
the City’s demurrer to these causes of action without leave to amend.
D. Failure To File a Government Claim
Enriquez acknowledges that she failed to comply with the Government Claims
Act, which requires that the plaintiff file a claim with the state before a “suit for money or
damages may be brought against a public entity.” (Gov. Code, § 945.4; Crow v. State of
California (1990) 222 Cal. App. 3d 192, 199.) She states, however, that this was “purely
out of ignorance, mistake or inadvertence, and perpetuated by City,” which failed to
notify her that she was required to file a tort claim before bringing suit.
Enriquez fails to cite any authority to suggest that her ignorance and the City’s
failure to inform her of the requirements of the Government Claims Act excuse her
noncompliance. Legal arguments in an appellate brief must be supported by citations to
appropriate legal authority. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [a party must
“support each point [in his or her brief] by argument and, if possible, by citation to
authority”].) A conclusory argument devoid of citation to legal authority is insufficient
and may be disregarded. (Rojas v. Platinum Auto Group, Inc. (2013) 212 Cal. App. 4th
997, 1000, fn. 3; Dabney v. Dabney (2002) 104 Cal. App. 4th 379, 384.) Enriquez’s
argument is insufficient, and she has failed to meet her burden of demonstrating error.
(See In re Marriage of Falcone & Fyke (2008) 164 Cal. App. 4th 814, 830 [“[t]he absence
of cogent legal argument or citation to authority allows this court to treat the contentions
18
as [forfeited]”].) In any event, the law is to the contrary. Enriquez’s “ignorance, mistake
or inadvertence” and the City’s failure to inform her of the claim-filing requirements do
not entitle her to relief. (See Munoz v. State of California (1995) 33 Cal. App. 4th 1767,
1778 [“mistake of law based solely on ignorance of the . . . claim requirement is not
enough” to obtain relief from the requirement under Government Code section 946.6];
Tyus v. City of Los Angeles (1977) 74 Cal. App. 3d 667, 672-673 [board of police
commissioners and mayor, to whom appellant complained of police misconduct, “were
under no duty to advise appellant of the claims statutes”].)
Enriquez’s failure to file a tort claim bars her common law causes of action against
the City (causes of action 1-3, 20-22). The trial court did not abuse its discretion in
sustaining the City’s demurrer without leave to amend as to these causes of action.
E. Exhaustion of Administrative Remedies
Enriquez’s remaining causes of action are for hostile work environment and
retaliation in violation of FEHA (causes of action 18-19). The City demurred to these
causes of action on the grounds that Enriquez had failed to exhaust her administrative
remedies and that the connection between any protected activity and employment action
was too temporally attenuated.
FEHA requires exhaustion of administrative remedies prior to the filing of a
complaint. Under FEHA “the employee must file an administrative complaint with
DFEH identifying the conduct alleged to violate FEHA. At the conclusion of the
administrative process, which may or may not include an investigation or administrative
remedies, DFEH generally issues the employee a right-to-sue notice. [Citation.]” (Wills
v. Superior Court, supra, 195 Cal.App.4th at p. 153; see Gov. Code § 12960.) The scope
of any subsequent civil action under FEHA is limited to claims of discrimination raised
by the complaint. (See Wills, supra, at pp. 154-155 [“‘“The administrative exhaustion
requirement is satisfied if the allegations of the civil action are within the scope of the
[DFEH] charge, any [DFEH] investigation actually completed, or any investigation that
might reasonably have been expected to grow out of the charge.”’ [Citation.]”].)
19
Enriquez attached to her first amended complaint copies of her right to sue letters
and a copy of her EEOC intake questionnaire, but not copies of the actual complaints to
the DFEH and EEOC. According to Enriquez, she filed her complaint with the DFEH
online and was unable to obtain a copy of it. She does not specify what was in that
complaint. She merely argues that because she received right to sue letters, it is clear she
made complaints to both agencies. That is not enough to determine that she exhausted
her administrative remedies.
The only document that explains the nature of Enriquez’s complaint, the EEOC
intake questionnaire, does not support a finding that she claimed sexual harassment based
on a hostile work environment in violation of FEHA (Accardi v. Superior Court (1993)
17 Cal. App. 4th 341, 348) or retaliation for opposing a practice forbidden under FEHA
(Morgan v. Regents of University of California (2000) 88 Cal. App. 4th 52, 69). Enriquez
claimed in her intake questionnaire that she was disciplined for missing her interview
with the investigator and for discussing the investigation with coworkers. She stated: “I
believe that my termination from the SMFD as well as the City Manager’s refusal to
reinstate my leave are a direct result of the earlier conflict regarding the 2008 employee
misconduct investigation, and that the City was waiting for an opportunity to fire me,
which it found and took.” There is nothing in this statement that suggests Enriquez was
claiming sexual harassment based on a hostile work environment in violation of FEHA or
retaliation for opposing a practice forbidden under FEHA.
Enriquez does not cite any authority to support her position that the right to sue
letters alone were sufficient to establish exhaustion of administrative remedies. Nor does
she demonstrate in what manner she could amend her complaint to allege exhaustion of
administrative remedies. Therefore, she has failed to meet her burden of demonstrating
that the trial court erred in sustaining the City’s demurrer to her harassment and
retaliation causes of action or abused its discretion in denying her leave to amend those
causes of action.
20
F. Additional Bases for Sustaining the Demurrer Without Leave To Amend
1. Disability Discrimination
Enriquez argues that the City failed to establish that she had pleaded insufficient
facts to state a cause of action for disability discrimination because the City based its
demurrer on the fact that pregnancy is not a disability under the ADA, while Enriquez
based her cause of action on her placenta previa. As discussed above, however, Enriquez
did not notify the City of her condition, pregnancy or placenta previa, until after the City
had made the decision to terminate her. Therefore, she cannot state a cause of action for
discrimination based on disability. (See Avila v. Continental Airlines, Inc., supra, 165
Cal.App.4th at p. 1251; Taylor v. Principal Financial Group, Inc. (5th Cir. 1996) 93 F.3d
155, 163-164 [claim of disability discrimination requires that employer be aware of
disability and the plaintiff’s limitations resulting from the disability].)
2. Immunity
Enriquez also argues that the City failed to establish that it had immunity from
liability for her common law causes of action for wrongful termination (causes of action
2-3). Enriquez acknowledges that the court in Miklosy v. Regents of University of
California (2008) 44 Cal. 4th 876, 898-900 held that public employers are not subject to
common law claims for wrongful termination in violation of public policy. She claims,
however, that her causes of action fall within an exception to this rule.
The Miklosy court held: “The Government Claims Act ([Gov. Code,] § 810 et
seq.) establishes the limits of common law liability for public entities, stating: ‘Except as
otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether
such injury arises out of an act or omission of the public entity or a public employee or
any other person.’ ([Gov. Code,] § 815, subd. (a), italics added.) The Legislative
Committee Comment to [Government Code] section 815 states: ‘This section abolishes
all common law or judicially declared forms of liability for public entities, except for
such liability as may be required by the state or federal constitution, e.g., inverse
condemnation. . . .’ (Legis. Com. com., 32 West’s Ann. Gov. Code (1995) foll. § 815,
21
p. 167, italics added.)” (Miklosy v. Regents of University of California, supra, 44 Cal.4th
at p. 899.)
Enriquez argues that the “City itself states that these Causes of Action are rooted
in Government Code [section] 12940 regarding discrimination and the California
Constitution. Thus, because the wrongful termination Causes of Action are supported by
statute, they are not pursuant to common law, and City is not immune to the Causes of
Action for wrongful termination.” (Italics omitted.) To the extent Enriquez is claiming
that her causes of action for wrongful termination are statutory, brought pursuant to
Government Code section 12940 (i.e., FEHA), they are barred for the reasons stated
above. To the extent Enriquez is claiming that the California Constitution may impose
liability on the City, her failure to identify a specific constitutional provision or cite
relevant supporting authority forfeits such a claim. (See Rojas v. Platinum Auto Group,
Inc., supra, 212 Cal.App.4th at p. 1000, fn. 3; In re Marriage of Falcone & Fyke, supra,
164 Cal.App.4th at p. 830; Dabney v. Dabney, supra, 104 Cal.App.4th at p. 384.)
3. Breach of Contract/Implied Covenant
Enriquez also argues that the City failed to establish that she did not plead facts
sufficient to state a cause of action for breach of an implied contract or covenant (causes
of action 1, 20). However, “it is well settled in California that public employment is not
held by contract but by statute . . . .” (Miller v. State of California (1977) 18 Cal. 3d
808, 813; accord, Mendoza v. Town of Ross, supra, 128 Cal.App.4th at p. 634.)
Therefore, “[a] California public employee . . . cannot state a cause of action for breach
of contract or breach of the implied covenant of good faith and fair dealing arising out
of the public employment relationship. [Citations.] The public employee’s remedies
are limited to those provided by statute or ordinance. [Citation.]” (Lachtman v. Regents
of University of California (2007) 158 Cal. App. 4th 187, 207; accord, Shoemaker v.
Myers (1990) 52 Cal. 3d 1, 23-24; Kim v. Regents of University of California (2000) 80
Cal. App. 4th 160, 164-165.) Enriquez cites no authority to the contrary.
22
4. Sex Discrimination
Enriquez argues that the trial court erroneously sustained the City’s demurrer to
her cause of action for sex discrimination in employment by municipalities or local
governmental agencies under the Civil Rights Act of 1871 (cause of action 9), because
she sufficiently alleged “that her termination was based on an official policy of City,
which was the policy requiring the EMT Certification to be completed by June 1, 2010.”
Enriquez, however, did not state claim for violation of her civil rights under the Civil
Rights Act of 1871, 42 United States Code section 1983.
A municipality can be liable under 42 United States Code section 1983 only
where the municipality causes a violation of the plaintiff’s federal constitutional rights.
(Canton v. Harris (1989) 489 U.S. 378, 385 [109 S. Ct. 1197, 103 L. Ed. 2d 412.) This
occurs “‘when the “execution of the government’s policy or custom . . . inflicts the
injury . . . .”’” (Ibid.) There must be a direct causal connection between the
municipality’s policy or custom and the violation. (Ibid.) In order to state a claim
under 42 United States Code section 1983, a plaintiff must allege that the defendant
deprived him or her of a federal right under color of state law. (Rosales v. City of Los
Angeles (2000) 82 Cal. App. 4th 419, 430.) The plaintiff must identify the federal right
the defendant allegedly violated. (Id. at pp. 430-431; Weaver v. State of California
(1998) 63 Cal. App. 4th 188, 203.) In addition the plaintiff must allege that the violation
resulted from “‘official policy as the moving force of the [claimed] constitutional
violation . . . .’ [Citation.]” (Harman v. City and County of San Francisco (2006) 136
Cal. App. 4th 1279, 1296, quoting from Monell v. New York City Dept. of Social Services
(1978) 436 U.S. 658, 694 [98 S. Ct. 2018, 56 L. Ed. 2d 611].) A facially neutral policy
will not generally constitute a civil rights violation. (See Mayfield v. Texas Dept. of
Criminal Justice (5th Cir. 2008) 529 F.3d 599, 608; City of Hialeah, Fla. v. Rojas (11th
Cir. 2002) 311 F.3d 1096, 1103.) Only if the policy was enacted because of its
disparate impact on a protected group can it serve as the basis of a claim under
section 1983 of title 42 of the United States Code. (See Ashcroft v. Iqbal (2009) 556
U.S. 662, 677 [129 S. Ct. 1937, 173 L. Ed. 2d 868] [“to state a claim based on a violation
23
of a clearly established right, [appellant] must plead sufficient factual matter to show
that [respondent] adopted and implemented the . . . policies at issue not for a neutral . . .
reason but for the purpose of discriminating” on a prohibited basis]; Harman, supra, at
p. 1289 [“plaintiff must show that the municipality’s action was motivated by a
‘discriminatory intent or purpose’”]; Graham v. City of Biggs (1979) 96 Cal. App. 3d
250, 254 [policy motivated by “‘invidiously discriminatory animus’”]; cf. Horner v.
Kentucky High School Athletic Ass’n (6th Cir. 1994) 43 F.3d 265, 276 [title IX claim].)
Enriquez does not specify which federal right the City violated by requiring her
to obtain EMT certification by June 1, 2010. Moreover, in light of the fact that the City
set this “policy” before learning of Enriquez’s pregnancy and placenta previa, Enriquez
has not shown how she can allege that the City enacted the policy for the purpose of
discrimination in violation of federal law. In any event, Enriquez cites no authority in
support of her argument, again forfeiting it.
5. Retaliation
Enriquez contends finally that the City failed to establish that her claim of
retaliation for engaging in protected activity (cause of action 19) was temporally
unrelated to her wrongful termination. In support of her contention, she points to
allegations that she received a disciplinary notice on August 2, 2008, and responded on
August 22, 2008 “that she was suffering from a hostile work environment and was the
target of harassment.” As a result of the disciplinary notice, Enriquez’s employment with
the SMPD, scheduled to begin on August 4, 2008, was deferred for six months and then
indefinitely. Enriquez continued to work for the SMFD for over a year, until the end of
2009, when the SMFD informed her that it was placing her on leave, and was not
terminated until June 1, 2010.
To establish a prima facie case of unlawful retaliation, a plaintiff must
demonstrate that he or she engaged in a protected activity, the employer subjected him or
her to an adverse employment action, and there was a causal link between the protected
activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th
241028, 1042; Morgan v. Regents of University of California, supra, 88 Cal.App.4th at
p. 69.) “‘The retaliatory motive is “proved by showing that plaintiff engaged in protected
activities, that his employer was aware of the protected activities, and that the adverse
action followed within a relatively short time thereafter.” [Citation.] “The causal link
may be established by an inference derived from circumstantial evidence, ‘such as 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.’” [Citation.]’ [Citation.]” (Morgan, supra, at pp. 69-70; accord, California
Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal. App. 4th
1004, 1018.) In order to plead a cause of action for retaliation, the plaintiff must allege
that the adverse employment action “was in close temporal proximity to the protected
activity.” (Gee v. Pacheco (10th Cir. 2010) 627 F.3d 1178, 1189; see Clark County
School Dist. v. Breeden (2001) 532 U.S. 268, 273 [121 S.Ct 1508, 149 L. Ed. 2d 509];
Morgan, supra, at p. 69.)
In Loggins v. Kaiser Permanente Internat. (2007) 151 Cal. App. 4th 1102 there
were nine months between the protected activity and the employer’s action. The court
noted that “the case law suggests the employer’s action must follow ‘“within a relatively
short time,”’” and that the plaintiff cited “no case holding that a nine-month hiatus
between protected conduct [and adverse action] qualifies as a ‘relatively short time.’”
(Id. at p. 1110, fn. 6.) By contrast, in Taylor v. City of Los Angeles Dept. of Water &
Power (2006) 144 Cal. App. 4th 1216, 1235, disapproved on another ground in Jones v.
Lodge at Torrey Pines Partnership (2008) 42 Cal. 4th 1158, 1173-1174, the court found a
causal link where the plaintiff alleged the retaliation took place or intensified “‘shortly
after’ ‘each act of opposition’” Other cases have held that periods of many months
between protected activity and adverse action are too long to establish a causal link.
(See, e.g., MacKenzie v. City and County of Denver (10th Cir. 2005) 414 F.3d 1266,
1279-1280 [five to seven months]; Richmond v. ONEOK, Inc. (10th Cir. 1997) 120 F.3d
205, 209 [three months is too long]; Kouakou v. Fideliscare New York (S.D.N.Y. 2012)
920 F. Supp. 2d 391, 401, fn. omitted [plaintiff’s allegation that the adverse employment
25
action occurred “approximately four months following his alleged complaint about his
co-workers [was] well outside of the acceptable outer limits for demonstrating a temporal
proximity to the protected activity”].)
Enriquez’s complaint fails to allege the temporal proximity necessary to state a
cause of action for retaliation. She cites no authority in support of her contention and, in
particular, no authority finding a causal link between protected activity and adverse
action occurring more than a year later.6
DISPOSITION
The order of dismissal is affirmed. The City is awarded its costs on appeal.
SEGAL, J.*
We concur:
PERLUSS, P. J.
WOODS, J.
6 Enriquez does not challenge the dismissal of her conversion cause of action.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
26