Sianez v. Employment Development Dept. CA2/5 ( 2023 )

Filed 3/30/23 Sianez v. Employment Development Dept. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
LARISSA SIANEZ, B322701
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. CV19004066)
EMPLOYMENT DEVELOPMENT
DEPARTMENT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Sonny S. Sandhu, Judge. Affirmed in part and
reversed in part.
Bohm Law Group, Lawrance A. Bohm, and Zane E. Hilton
for Plaintiff and Appellant.
Rob Bonta, Attorney General, Chris A. Knudsen, Senior
Assistant Attorney General, William T. Darden, Supervising
Deputy Attorney General, and Kelsey E. Papst, Deputy Attorney
General, for Defendant and Respondent.
Defendant and respondent Employment Development
Department (EDD) fired plaintiff and appellant Larissa Sianez
(Sianez). She appealed her termination to the State Personnel
Board (the Board). The Board affirmed the termination after a
multi-day evidentiary hearing in front of an Administrative Law
Judge (ALJ). Sianez did not seek a writ of mandamus to
overturn the Board’s decision and instead filed a civil action in
superior court asserting claims against EDD for discrimination,
various forms of retaliation, and failure to accommodate. EDD
demurred to the operative complaint, primarily arguing that
Sianez’s failure to exhaust her judicial remedies (the failure to
pursue mandamus relief) precluded her causes of action. The
trial court sustained the demurrer in its entirety, and we
consider whether Sianez’s claims are indeed precluded by the
related doctrines of judicial exhaustion and issue preclusion.
I. BACKGROUND
A. Sianez’s Employment with EDD
Sianez began working at EDD as an employment program
representative in July 2009. In March 2013, she was promoted to
full-time employee. Shortly after Sianez became a full-time
employee, she began to have difficulties with her employer, some
of which we catalog in the discussion that follows.1
1
Sianez’s civil complaint alleges facts regarding disputes
between Sianez and EDD from 2013 to the date of her
termination. The parties appear to agree the events that
occurred prior to November 2016 cannot or do not serve as bases
for Sianez’s claims. We accordingly do not discuss them.
2
1. Prior settlements with EDD
A dispute arose between Sianez and EDD over whether
EDD violated a memorandum of understanding when it denied
Sianez’s request for a flexible work schedule. In October 2015,
Sianez and EDD entered into a settlement agreement to resolve
the dispute. Pursuant to the agreement, Sianez released EDD
from any claims existing as of the date of the settlement, “in
connection with or arising out of the actions taken by [EDD]
regarding” the dispute.
Later, in May 2016, EDD issued Sianez a Notice of Adverse
Action suspending her for 20 working days. The grounds for the
suspension were inefficiency, inexcusable neglect, and
misconduct from July 2013 through June 2015. In November
2016, however, the Board approved a settlement agreement
between Sianez and EDD. Pursuant to the agreement, Sianez
released all claims existing as of the date of the settlement in
connection with the Notice of Adverse Action and agreed to
withdraw any grievances or complaints “which arise out of the
actions taken by [EDD] in connection with” that notice.
2. Subsequent events
These two settlement agreements did not mark the end of
the conflict between the parties. Sianez was issued corrective
action memoranda alleging various instances of misconduct (e.g.,
failure to follow instructions, absenteeism, and disruptive
behavior) in July, August, and September 2017.
Sianez then took protected leave for a claimed serious
health condition approximately eight to ten times each month
from October 2017 through January 2018. Sianez’s manager
issued her a corrective action memorandum based on her decision
3
to take leave. Sianez protested that EDD retaliated against her
for taking protected leave and for joining in complaints made by a
co-worker.
In November 2017, Sianez was denied a merit salary
adjustment because she “failed to follow instructions, failed in
performing her duties, and was insubordinate” for the period
from July 13, 2017, through November 6, 2017.2 Sianez
responded by filing a whistleblower retaliation complaint with
the Department of Industrial Relations.
Early in 2018, Sianez’s manager MeShan Record (Record)
confirmed Sianez was eligible for leave under the Family and
Medical Leave Act (FMLA). Record asked Sianez to clarify the
duration of her FMLA leave. Sianez provided a doctor’s note that
stated the leave was to be “as needed” and later filed a
discrimination complaint alleging Record discriminated against
Sianez because of her disability and retaliated against her for
taking protective leave. Record subsequently issued Sianez a
corrective action memorandum alleging unacceptable conduct
and attendance.
On March 21, 2018, EDD terminated Sianez’s employment,
effective March 30, 2018. Following her termination, Sianez filed
complaints with the State Personnel Board, the Department of
Fair Housing and Employment (DFEH), and the Equal
Employment Opportunity Commission. Sianez subsequently
received right to sue notices from the DFEH.
2
Around this time, Sianez received a performance
evaluation stating she met standards in four categories but did
not, overall, meet EDD’s employment expectations.
4
B. The Administrative Proceedings3
1. The prehearing statement
The record does not contain a copy of Sianez’s
administrative complaint regarding her termination. It does,
however, contain a copy of her first amended prehearing
settlement conference statement, which indicates Sianez asserted
affirmative defenses of retaliation, namely, whistleblower
retaliation; retaliation for filing complaints with the DFEH;
retaliation for filing discrimination complaints with EDD’s Equal
Employment Opportunity office; and retaliation for filing a
workers’ compensation claim, requesting reasonable
accommodation, exercising her rights under the FMLA and
California Family Rights Act (CFRA), and participating in an
investigation of a Department of Industrial Relations complaint.
The prehearing statement also summarized Sianez’s
anticipated testimony, which indicated she intended to testify
(among other things) about her asserted disability, the disability
discrimination complaints she submitted to EDD’s equal
employment opportunity office, her requests for reasonable
3
In the trial court, EDD submitted a request for judicial
notice of various documents: Sianez’s two settlement agreements
with EDD, the prehearing statement from the administrative
proceeding, the decision from the administrative proceeding, and
correspondence including a letter between Sianez and the
Government Claims program. The appellate record does not
reveal whether the trial court expressly ruled on the request for
judicial notice, but its disposition of the issues indicates it did so
impliedly. EDD has asked us to take judicial notice of the same
documents it submitted to the trial court and we grant the
request. (Evid. Code, § 459, subd. (a).)
5
accommodation and leave under the FMLA and CFRA, her
request for a shorter lunch period, and her continued need to
park in front of the EDD building where she worked.
2. The administrative decision
In August 2018, a Board ALJ held an evidentiary hearing
and rendered a proposed decision. The ALJ sustained charges of
inexcusable neglect of duty, insubordination, dishonesty,
discourteous treatment, willful disobedience, misuse of state
property, and other failure of good behavior.
The ALJ found: “A preponderance of the evidence
established [Sianez] was an unreliable employee who did not
report to work on a regular basis, and was consistently late when
she did report to work. [Sianez] also refused to comply with
departmental policies and supervisor directives, and was rude to
staff despite repeated counseling, instruction, and prior
discipline.” The ALJ further found that “the likelihood [Sianez]
will engage in the same behavior is high since she denies
wrongdoing and does not appear to understand or appreciate the
significance of her actions. For instance, at the hearing, [Sianez]
argued more than once that most of her absences were excused.
Nevertheless, the evidence established [Sianez] routinely and
defiantly failed to follow the Attendance and Break Policy and
the call-in procedures when she was absent or tardy. A failure to
accept and admit responsibility for acts of misconduct makes it
more likely that such misconduct will recur. [Citation.] [¶]
[Sianez] has also proven herself to be untrustworthy, and it is
well-established that dishonesty is not an isolated act; it is more
a continuing trait of character. [Citations.] [¶] Also relevant is
[Sianez’s] prior discipline. . . . It is not in the Department’s best
6
interest to retain an employee who engages in misconduct, is
repeatedly subject to discipline, and repeatedly fails to follow a
supervisor’s directives. For all these reasons, dismissal is an
appropriate penalty . . . .”
The Board adopted the ALJ’s proposed decision.
C. Sianez’s Civil Suit Against EDD
Sianez filed the operative first amended civil complaint in
April 2021. It alleges causes of action for violation of the CFRA
(first cause of action), Labor Code sections 98.6 and 1102.5
(seventh cause of action), and the California Whistleblower
Retaliation Act (eighth cause of action). The operative complaint
also alleges various Fair Employment and Housing Act (FEHA)
violations: disability discrimination (second cause of action),
failure to accommodate (third cause of action), failure to engage
in the interactive process (fourth cause of action), retaliation
(fifth cause of action), and failure to prevent harassment,
discrimination, and/or retaliation (sixth cause of action).
The causes of action for violation of the CFRA; disability
discrimination; retaliation; and failure to prevent harassment,
discrimination, and/or retaliation allege Sianez was harassed,
discriminated and retaliated against for taking CFRA-protected
leaves of absence, because of her physical or mental disabilities,
and in response to her complaints of disability and gender related
harassment and discrimination. The failure to accommodate and
failure to engage in the interactive process causes of action allege
Sianez was able to perform the essential duties of her position
with reasonable accommodation but EDD denied her
accommodation requests and refused to participate in a timely
and good faith interactive process. The statutory claim for
7
violation of Labor Code sections 98.6 and 1102.5 alleged Sianez
made protected complaints about topics like assault and an
unsafe working environment and EDD unlawfully retaliated
against her. The cause of action for violation of the California
Whistleblower Protection Act (Government Code section 8547.84)
alleged Sianez complained to supervisors and management about
improper government activities and concerns about the health
and safety of employees in the workplace and EDD retaliated
against her in response.
D. EDD’s Demurrer and the Trial Court’s Ruling
EDD demurred to the operative complaint. It argued
Sianez’s causes of action were barred or otherwise precluded
because Sianez is bound by the Board’s determination that her
termination was proper. EDD additionally argued Sianez was
required to exhaust judicial remedies in order to assert her
termination was unlawful and her claims were precluded insofar
as they relied on conduct subject to the releases in the October
2015 and November 2016 settlement agreements.
The trial court sustained the demurrer with leave to
amend. The court found Sianez failed to exhaust her judicial
remedies with regard to the Board’s decision, the administrative
decision was accordingly binding, and Sianez was precluded from
relitigating her claims.
Sianez did not file an amended complaint in the allotted
time. EDD accordingly filed an ex parte application to dismiss
4
Undesignated statutory references that follow are to the
Government Code.
8
the action, which the court granted. The trial court then entered
judgment for EDD.
II. DISCUSSION
The bulk of the trial court’s ruling is correct. Issue
preclusion and judicial exhaustion principles stand as a bar to
most of the claims asserted in the operative complaint. A remand
is required, however, to permit appropriate disposition of Sianez’s
Whistleblower Protection Act claim and her FEHA claims
alleging a failure to accommodate and failure to engage in the
interactive process. Judicial exhaustion of a Whistleblower
Protection Act claim brought pursuant to section 8547.8 is not
required under State Bd. of Chiropractic Examiners v. Superior
Court (2009) 45 Cal.4th 963 (Arbuckle). In addition, the finding
that Sianez was terminated for proper reasons does not
necessarily doom her claims for failure to accommodate and
failure to engage in the interactive process.
A. Standard of Review
We review an order sustaining a demurrer without leave to
amend de novo. (Centinela Freeman Emergency Medical
Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994,
1010; Morales v. 22nd Dist. Agricultural Assn. (2016) 1
Cal.App.5th 504, 537.) “[W]e accept the truth of material facts
properly pleaded in the operative complaint, but not contentions,
deductions, or conclusions of fact or law. We may also consider
matters subject to judicial notice. (Evans v. City of Berkeley
(2006) 38 Cal.4th 1, 6[ (Evans)].)” (Yvanova v. New Century
Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. omitted.)
9
B. Sianez Was Not Required to Judicially Exhaust Her
Government Code Section 8547.8 Claim
Judicial exhaustion, which our Supreme Court has
described as a “corollary” to issue preclusion doctrine, “‘may arise
when a party initiates and takes to decision an administrative
process—whether or not the party was required, as a matter of
administrative exhaustion, to even begin the administrative
process in the first place. Once a decision has been issued,
provided that decision is of a sufficiently judicial character to
support [issue preclusion], respect for the administrative
decision[-]making process requires that the prospective plaintiff
continue that process to completion, including exhausting any
available judicial avenues for reversal of adverse findings.
[Citation.] Failure to do so will result in any quasi-judicial
administrative findings achieving binding, preclusive effect and
may bar further relief on the same claims.’ [Citation.]” (Murray
v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 867 (Murray); see
also Runyon v. Board of Trustees of California State
University (2010) 48 Cal.4th 760, 773 (Runyon).) “An
administrative finding will not be given preclusive effect in a
later judicial proceeding, however, ‘“‘if doing so is contrary to the
intent of the legislative body that established the proceeding in
which res judicata or collateral estoppel is urged.’”’ [Citation.]”
(Id. at 774.)
Section 8547.8, subdivision (c), enacted as part of the
California Whistleblower Protection Act, provides in relevant
part: “In addition to all other penalties provided by law, any
person who intentionally engages in acts of reprisal, retaliation,
threats, coercion, or similar acts against a state employee or
applicant for state employment for having made a protected
10
disclosure shall be liable in an action for damages brought
against him or her by the injured party.” Subdivision (c) further
specifies that “any action for damages shall not be available to
the injured party unless the injured party has first filed a
complaint with the State Personnel Board pursuant to
subdivision (a), and the board has issued, or failed to issue,
findings pursuant to Section 19683.” (§ 8547.8, subd. (c).)
Our Supreme Court interpreted this statutory language in
Arbuckle, supra, 45 Cal.4th 963. The court observed the statute
“expressly acknowledged the existence of the parallel
administrative remedy” but “did not require that the board’s
findings be set aside by way of a mandate action; rather, it gave
as the only precondition to the damages action authorized in
section 8547.8(c), that a complaint be filed with the board and
that the board ‘issue[], or fail[] to issue, findings.’ [Citation.]”
(Id. at 976.) The Supreme Court held “[t]he bareness of this
statutory language suggests that the Legislature did not intend
the State Personnel Board’s findings to have a preclusive effect
against the complaining employee.” (Ibid; see also Runyon,
supra, 48 Cal.4th at 774 [Arbuckle concluded the language of
section 8547.8, subdivision (c) “left no room for a requirement of
judicial exhaustion”].)
The holding in Arbuckle is dispositive of Sianez’s eighth
cause of action: the Board’s decision regarding Sianez’s
termination does not foreclose her ability to bring a civil claim
under Government Code section 8547.8, subdivision (c). That
claim was therefore incorrectly resolved in EDD’s favor on
demurrer.
All of the arguments EDD makes in urging the contrary are
unpersuasive. EDD contends this case is distinct from Arbuckle
11
because Arbuckle involved informal proceedings without an
evidentiary hearing. Taking great pains to avoid calling the
contents of the administrative decision “findings,” EDD contends
the language in section 8547.8, subdivision (c) does not apply to
the Board’s “issue determinations in a disciplinary proceeding.”
The text of section 8547.8, subdivision (c), however, makes no
distinction between so-called “informal” findings and the findings
made in the Board’s decision, and we believe the reasoning in
Arbuckle fully applies here.
EDD’s reliance on Murray for the proposition that
subdivision (c) was never intended to apply outside the context of
informal Whistleblower Retaliation Act processes is also
unavailing. Murray distinguished Arbuckle on the ground that
the statute at issue in Murray contained “no
language . . . suggesting Congress intended that conclusive
findings made by the Secretary in a final nonappealable order
should not have preclusive effect in a subsequent state court
action.” (Murray, supra, 50 Cal.4th at 877, fn. 8.) It did not
make any distinction regarding the point in the administrative
process at which the findings were made.
Finally, EDD’s argument that the Whistleblower Protection
Act cannot divest the Board of its constitutional authority to
decide disciplinary actions also fails. Application of Arbuckle to
the facts at hand does not divest the Board of any authority. The
Board reviewed Sianez’s complaint and adopted a decision that
affirmed the termination of her employment. Sianez does not
seek to overturn the termination decision. And as discussed post,
some of the Board’s findings have preclusive effect against
Sianez’s current claims. Only Sianez’s eighth cause of action is
affected, and we see no constitutional reason why the Legislature
12
cannot permit a subsequent civil action for a Whistleblower
Protection Act claim when it is undisputed the Board’s ruling on
such a claim can be reviewed in the courts via a mandamus
petition.
C. Most of Sianez’s Remaining Causes of Action Are
Precluded
Sianez presents no reasoned argument urging a similar
legislative purpose prevents the application of ordinary issue
preclusion and judicial exhaustion principles to her remaining
claims.5 Accordingly, the normal rules apply. It is uncontested
both that the administrative proceeding was of a sufficiently
judicial character to trigger the judicial exhaustion requirement
and that Sianez did not exhaust her judicial remedies by filing a
petition for writ of mandate to overturn the Board’s decision.
Accordingly, the Board’s decision is binding on the issues therein
litigated. We accordingly consider whether, and to what extent,
Sianez’s causes of action (other than the already-discussed
5
Sianez makes brief reference to a portion of Taswell v.
Regents of University of California (2018) 23 Cal.App.5th 343(Taswell) that concludes claims under Labor Code section 1102.5
do not require judicial exhaustion. Sianez does not, however,
address why or how our Supreme Court’s holdings in Arbuckle
and Runyon might apply to claims under Labor Code section
1102.5 or 98.6, the latter of which Taswell does not address at all.
The point (insofar as there is a point at all) is therefore waived.
(In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814,
830 [“The absence of cogent legal argument or citation to
authority allows this court to treat the contentions as waived”].)
13
Whistleblower Protection Act claim) are impacted by the Board’s
ruling.
1. Issue preclusion principles
“The threshold requirements for issue preclusion are: (1)
the issue is identical to that decided in the former proceeding, (2)
the issue was actually litigated in the former proceeding, (3) the
issue was necessarily decided in the former proceeding, (4) the
decision in the former proceeding is final and on the merits, and
(5) preclusion is sought against a person who was a party or in
privity with a party to the former proceeding. [Citation.]”
(Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481
(Castillo).)
“The ‘identical issue’ requirement addresses whether
‘identical factual allegations’ are at stake in the two
proceedings . . . .” (Lucido v. Superior Court (1990) 51 Cal.3d
335, 342.) “An issue is actually litigated ‘when [it] is properly
raised, by the pleadings or otherwise, and is submitted for
determination, and is determined . . . . A determination may be
based on a failure of . . . proof . . . .’ [Citation.]” (People v. Sims
(1982) 32 Cal.3d 468, 484.) An issue is “‘necessarily decided,’” if
“the issue was not ‘“entirely unnecessary”’ to the judgment in the
prior proceeding.” (Castillo, supra, 92 Cal.App.4th at 482.)
2. Sianez’s failure to accommodate and failure to
engage in interactive process causes of action
are not precluded
“While a claim of failure to accommodate is independent of
a cause of action for failure to engage in an interactive dialogue,
each necessarily implicates the other.” (Moore v. Regents of
14
University of California (2016) 248 Cal.App.4th 216, 242
(Moore).) “The elements of a failure to accommodate claim are
‘“(1) the plaintiff has a disability under the FEHA, (2) the
plaintiff is qualified to perform the essential functions of the
position [held or desired], and (3) the employer failed to
reasonably accommodate the plaintiff’s disability.”’” (Kaur v.
Foster Poultry Farms LLC (2022) 83 Cal.App.5th 320, 346.) The
elements of a claim for failure to engage in the interactive process
include: (1) plaintiff was an employee of defendant or applied for
a job with defendant; (2) plaintiff had a disability that was known
to defendant; (3) plaintiff requested that defendant make a
reasonable accommodation so that he would be able to perform
the essential job requirements; (4) plaintiff was willing to
participate in an interactive process to determine whether
reasonable accommodation could be made; (5) defendant failed to
participate in a timely good faith interactive process; and (6)
defendant’s failure to engage in a good-faith interactive process
was a substantial factor in causing plaintiff harm. (§ 12940,
subd. (n); CACI No. 2546.)
The binding nature of the Board’s decision does not
preclude—on demurrer—Sianez’s causes of action for failure to
accommodate and failure to engage in the interactive process.
Neither claim necessarily relies upon the appropriateness, or lack
thereof, of Sianez’s termination for its viability.
EDD believes otherwise for three reasons, none of which is
convincing. EDD argues Sianez’s claim is barred because the
operative complaint alleges that one of the ways EDD failed to
accommodate Sianez’s disability was by terminating her
employment. This does not entirely bar her claim because Sianez
alleges more than one way in which EDD failed to accommodate
15
her disability. Second, EDD contends the administrative decision
includes factual findings that establish facts detrimental to
Sianez’s claims. While EDD identifies findings that would seem
to chip away at Sianez’s ability to prove a failure to accommodate
or engage in the interactive process, it does not establish those
findings necessarily demonstrate, at this stage of the litigation,
that Sianez’s claims cannot be proven. Third, EDD argues the
administrative decision precludes Sianez from establishing she is
a qualified individual with a disability because the Board found
Sianez was an unreliable employee who failed to follow office
policies. Again, while that finding may certainly bear upon and
constrain Sianez’s claims as this litigation progresses, it does not
conclusively establish she cannot state a proper claim for failure
to accommodate and failure to engage in the interactive process.
3. Sianez’s remaining causes of action are
precluded by the administrative decision
The binding Board’s findings do, however, preclude Sianez’s
remaining causes of action.6 The issues presented in the
6
The Board’s finding that Sianez’s termination was proper is
binding even if Sianez did not expressly address her
discrimination or retaliation claims during the administrative
hearing. For purposes of preclusion analysis, what matters is
“whether the party against whom issue preclusion is being
sought had ‘an adequate opportunity to litigate’ the factual
finding or issue in the prior administrative proceeding.” (Murray,
supra, 50 Cal.4th at 869; see also Lucas v. County of Los Angeles
(1996) 47 Cal.App.4th 277, 286 [“The doctrine of collateral
estoppel applies on issues litigated even though some factual
matters or legal arguments which could have been raised were
not”].) Sianez could have introduced additional facts relevant to
16
administrative action are identical to those presented in Sianez’s
claims that she was discriminated and retaliated against. All are
founded on the same core facts regarding her performance at
work, her interactions with her colleagues, and the reasons for
her termination. The issue of the propriety of Sianez’s
termination was also actually litigated and necessarily decided in
the administrative hearing. The Board (in adopting the ALJ’s
proposed decision) found Sianez’s termination was appropriate
and motivated by proper reasons, such as her lack of reliability as
an employee and failure to follow various departmental policies.
In other words, the Board could not have found Sianez’s
termination appropriate if the Board had also found the reasons
for Sianez’s discharge were merely a pretext for discrimination or
retaliation. (E.g., Castillo, supra, 92 Cal.App.4th at 481-482.)
The same rationale defeats Sianez’s remaining claims. An
adverse employment action is an essential element of Sianez’s
claims for retaliation and discrimination under FEHA, violation
of the CFRA,7 and violation of the relevant Labor Code sections.
(E.g., Horsford v. Board of Trustees of California State University
the remaining discrimination and retaliation claims and made
these legal arguments before the Board. Her choice not to do so
does not prevent the application of preclusion now.
7
Sianez correctly notes that a plaintiff may state a claim for
violation of the CFRA by way of interfering with an employee’s
CFRA rights, or by way of retaliation for use of CFRA rights.
(E.g., Moore, supra, 248 Cal.App.4th at 233.) Contrary to
Sianez’s assertion, however, her cause of action for violation of
the CFRA only alleges EDD retaliated against her for exercising
those rights. It does not purport to allege an interference claim.
17
(2005) 132 Cal.App.4th 359, 373 [adverse action required for
FEHA discrimination suit]; Moore, supra, 248 Cal.App.4th at
234, 248 [same for FEHA retaliation and CFRA retaliation
claims]; Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th
384, 392 [prima facie case for violation of Labor Code section
1102.5 requires plaintiff to show employer subjected them to
adverse employment action]; Garcia-Brower v. Premier
Automotive Imports of CA, LLC (2020) 55 Cal.App.5th 961, 977
[same for Labor Code section 98.6].) Sianez does not argue any
adverse employment actions other than her termination could
support the claims. As a result, the Board’s decision precludes
Sianez’s first, second, fifth, and seventh causes of action. And
because Sianez’s discrimination and retaliation claims fail to
state a claim, so too does her sixth cause of action for failure to
prevent discrimination and retaliation. (E.g., Scotch v. Art
Institute of California (2009) 173 Cal.App.4th 986, 1021; Dickson
v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314.)
Sianez’s attempt to rely on the mixed-motive doctrine in
Harris v. City of Santa Monica (2013) 56 Cal.4th 203 to save her
claims is misplaced. The mixed-motive defense is just that, a
defense to be raised by an employer, not a theory to save an
employee’s defective claim for discrimination. Further, the
necessary predicate for the applicability of the mixed-motive
doctrine is for the plaintiff to prove discrimination was a
substantial motivating factor in an adverse employment decision.
Sianez failed to so prove in the administrative proceeding, and
that finding is binding here.
18
DISPOSITION
The judgment is reversed and the cause is remanded for
further proceedings consistent with this opinion. The parties
shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
19