Boutin, Raymond vs. City of Yreka, et al

On or about June 21, 2024, Plaintiff received a Notice of Discipline - Termination, stating the termination would not be overturned. (FAC P.96.)

Defendant City demurrers to the second, third, fifth, sixth and seventh causes of action for failure to allege sufficient facts to constitute a cause of action. Plaintiff, in opposition, identifies allegations purportedly in satisfaction of the elements of these causes of action.

Authority and Analysis The purpose of a demurrer is to test whether a complaint "states facts sufficient to constitute a cause of action upon which relief may be based." (Young v. Gannon (2002) 97 Cal.App.4 th 209, 220.

To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.)

The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if "the defendants negate any essential element of a particular cause of action." (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4 th 857, 879-80)

To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4 th 634, 638.)

It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer. (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062)

But "doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4 th 1219, 1226.)

Second Cause of Action - Age Discrimination - Disparate Treatment (Gov. Code Sec. 12940(a)) Under Government Code section 12940(a), it is impermissible to discriminate "...in terms, conditions, or privileges of employment" based on age. (Gov. Code, Sec. 12940(a).)

"'To establish a disparate treatment claim, a plaintiff must prove the defendant intentionally discriminated.' [citation omitted]...Under the FEHA, the discriminatory intent does not need to be proven as the sole motivation behind the challenged action, but the plaintiff must produce evidence that, taken a whole, permits a rational inference that intentional discrimination was a substantial motivating reason for the adverse action. [citation omitted]." (Carroll v. City and County of San Francisco (2025) 115 Cal.App.5th 1192, 1204.)

Such a claim can be proven by direct or circumstantial evidence. (Id.)

"To succeed on a disparate treatment claim at trial, the plaintiff has the initial burden of establishing a prima facie case of discrimination, to wit, a set of circumstances that, if unexplained, permit an inference that it is more likely than not the employer intentionally treated the employee less favorably than others on prohibited grounds. Based on the inherent difficulties of showing intentional discrimination, courts have generally adopted a multifactor test to determine if a plaintiff was subject to disparate treatment.

The plaintiff must generally show that: he or she was a member of a protected class; was qualified for the position he sought; suffered an adverse employment action, and there were circumstances suggesting that the employer acted with a discriminatory motive. (Jones v. Department of Corrections (2007) 152 Cal.App.4th 1367, 1379, internal citations omitted; See also CACI 2500.)

It appears undisputed that Plaintiff was a member of a protected class (FAC P.133.) Further, it appears undisputed that an adverse employment action or actions occurred and that Plaintiff was otherwise qualified for his position.

Plaintiff notes allegations including retaliatory investigations (FAC P.P. 11-16, 37, 43-49, 73-87, 92, 95), disciplinary proceedings (FAC P.P. 92, 95, 104-105), exclusion from workplace decision-making (FAC P. 27), and ultimately termination from employment (FAC P. 96.) (See also FAC P.132.)

Additionally, it appears undisputed that Plaintiff was qualified to perform his position within the department. (FAC P.P.6-9, 33, 36, 110.)

Here, Defendant challenges the final element as to the alleged circumstances suggesting the City acted with a discriminatory motive based on Plaintiff's age. Plaintiff alleges "Plaintiff's age was a substantial motivating reason for Defendant(s)' decision to subject Plaintiff to adverse employment actions..." (FAC P.133.)

Further, that there exists a "pattern in which younger employees, ranging from a near-decade to two decades younger than Plaintiff, received preferential treatment, and Plaintiff, the oldest in rank, was repeatedly targeted, scrutinized, and ultimately terminated on grounds pretextually inflated by subordinates who had long expressed hostility toward him" (Opposition to Demurrer 5:2-5.)

Plaintiff first notes allegations that Chief Gamache was appointed to Chief in April 2018 despite being 8 or 9 years younger than Plaintiff, with less seniority and less experience than Plaintiff. (FAC P.19.)

Plaintiff alleges the former chief, Chief Bowles gave "preferential treatment" toward Gamache, Betts and Potter, all of whom were younger than Plaintiff and all of whom were alleged to have been less experienced and less senior than Plaintiff. (FAC P.20.)

Additionally, that in and around May 2018, Chief Gamache appointed Potter to one of the vacant Sergeant positions and placed Potter in charge of training and scheduling, despite that Potter was 17 years younger than Plaintiff. (FAC P.21.)

Further, that Chief Gamache would promote, or give special duties and/or assignments, to Betts, Duncan, and Potter (all younger than Plaintiff) without interviewing other potential candidates "who were usually older and more senior than Chief Gamache's clique of subordinates." (FAC P.22.)

Additionally that Gamache offered free time off chips to younger employees, that Betts was permitted to work only about 2 hours per day and that Betts used a work cellular phone as a personal phone with the approval of Gamache. (FAC P.25.)

Finally, Plaintiff alleges that Plaintiff was made "Sergeant in Charge" but that City Manager Baker, instead of promoting Plaintiff, rehired former Senior Sergeant Mark Gilman to become the Acting Chief and that "City Manager Baker's decision appeared to be retaliatory and discriminatory, as BOUTIN was qualified for the position and had more seniority at the time, as he was a current DEPARTMENT employee." (FAC P.33.)

In sum, Plaintiff alleges younger employees were treated more favorably as to assignments, privileges of employment, placement, and promotion than Plaintiff.

"At least three types of evidence can be used to show pretext: (1) direct evidence of retaliation, such as statements or admissions, (2) comparative evidence, and (3) statistics." (Iwekaogwu v. City of L.A. (1999) 75 Cal.App.4th 803, 816.)

The amended complaint sufficiently alleges, at the demurrer stage, that intentional discrimination occurred based on Plaintiff's age, as only younger employees were given preferential treatment. Therefore, the Court overrules the demurrer as to the second cause of action, finding sufficient circumstantial allegations of disparate treatment on the basis of age.

Third Cause of Action - Age Discrimination - Disparate Impact (Gov. Code Sec. 12940(a)) "The first step in raising a disparate-impact claim is to identify the specific employment practice allegedly causing the discriminatory impact." (Carpenter v. Boeing Co., (9th Cir. 2006) 456 F.3d 1183, 1193.)

Further, "Plaintiffs generally cannot attack an overall decisionmaking process in the disparate impact context, but must instead identify the particular element or practice within the process that causes an adverse impact." (Stout v. Potter (9 th Cir. 2022) 276 F.3d 1118, 1124.)

Here, the amended complaint alleges the City "...had an employment practice of discipline that had a disproportionate adverse effect on employees 58 years of age and older." (FAC P. 144.)

Paragraph 37 alleges requests to remove an older report from Plaintiff's personnel file pursuant to an internal policy for which Chief Gilman refused. (FAC P.P.37, 49, 73.)

This, in combination with the allegations of preferential treatment of younger employees discussed above, is sufficient to state a cause of action for disparate treatment, as these paragraphs reflect a "facially neutral employer practice or policy" that is alleged to have "...had a disproportionate adverse effect on members of the protected class." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, fn. 20.) Therefore, the Court overrules the demurrer to this cause of action.

Fifth Cause of Action - Failure to Engage in the Interactive Process (Gov. Code Sec. 12940(n) "Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. (Gov. Code, Sec. 12940, subd. (n); Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 242.)" (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424.)

FEHA requires an employer and a disabled employee to engage in a timely, good faith "interactive process" to identify or implement effective, reasonable accommodations that will enable the employee to perform their job effectively. (Gov't. Code Sec. 12940(n); 2 Cal. Code Regs. Sec. 11069(a); Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013.)

To prevail on a claim under Government Code section 12940(n), "...the employee must be able to identify an available accommodation the interactive process should have produced." (Id. at 1018-1019.)

Here, Plaintiff alleges, amongst other allegations, "On or about August 11, 2021, BOUTIN injured his left shoulder while struggling with a suspect. BOUTIN informed the DEPARTMENT of his injury and resulting limitations. However, the DEPARTMENT refused to engage in the interactive process with BOUTIN and failed to accommodate BOUTIN's left shoulder injury." (FAC P.40.)

Further, that Plaintiff, after filing a workers compensation claim related to this injury, informed Defendant of his injury and resulting limitations. (FAC P.53.)

However, Defendant "...refused to engage in the interactive process with BOUTIN and failed to accommodate BOUTIN's left shoulder injury." (FAC P.53.)

Further, Plaintiff alleges "In and between March 2023 and April 2023, after BOUTIN's left shoulder surgery, the DEPARTMENT placed BOUTIN on light duty for only one month to recover. Although needed beyond one month, the DEPARTMENT removed BOUTIN from light duty and did not consider any other reasonable accommodations." (FAC P.61.)

The Court finds these allegations sufficient, at least as to the left shoulder injury that initially occurred August 11, 2021, to allege a claim for failure to engage in the interactive process. The Court finds sufficient that Plaintiff alleges an extended period of light duty is an available accommodation that the process should have produced, as opposed to a single month of light duty.

Because "[a] demurrer must dispose of an entire cause of action to be sustained," the Court does not adjudicate whether the other allegations as to other injuries or processes are sufficient. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) Therefore, the Court overrules the demurrer to the fifth cause of action.

Sixth Cause of Action - Failure to Provide Reasonable Accommodation (Gov. Code Sec. 12940(m) Further, "An employer... has an affirmative duty to make reasonable accommodation(s) for the disability of any... employee if the employer... knows of the disability, unless the employer...can demonstrate, after engaging in the interactive process, that the accommodation would impose an undue hardship." (2 Cal. Code Regs. Sec. 11068(a).)

To establish the failure to provide a reasonable accommodation, a plaintiff must demonstrate: (1) the employee suffered a disability (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee's disability." (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.)

Here, as with the above, the August 11, 2021 left shoulder injury constitutes a sufficient allegation of a disability, that Plaintiff could perform the essential functions of the job with a reasonable accommodation (such as light duty) and that Defendant failed to accommodate the disability by failing to provide an extended period of light duty. Therefore, the Court overrules the demurrer to this cause of action.

Seventh Cause of Action - Hostile Work Environment Harassment (Gov. Code Sec. 12940(j)) Government Code section 12940, subdivision (j)(1) prohibits harassment of an employee "because of...physical disability...medical condition...[and] age."

The elements of a cause of action for harassment under FEHA are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to harassment; (3) the harassment complained of was based on the plaintiff's membership in the protected group; and (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment (Jones v. Dep't of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1377.)

As to the remaining elements, the Court notes hostile work environment is determinable only by considering all of the circumstances, which may include frequency, severity and job interference. (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 462.)

Further, the elements of severe or pervasive harassment unreasonably interfering with work performance are assessed from the perspective of a reasonable person of the protected class. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 877.)

"Ostracism, of course, does not amount to a hostile environment, and no cause of action can be pled on that basis alone." (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 615.)

Harassment does not typically include commonly necessary personnel management actions, such as hiring, firing, job assignments, promotion, demotion, performance evaluations, excluding from meetings, and laying off. (Thompson, supra, 186 Cal.App.4th at 879.)

"[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Harassment is not conduct of a type necessary for management of the employer's business or performance of the supervisory employee's job." (Reno v. Baird (1998) 18 Cal.4th 640, 646.)

However, "[I]n some cases the hostile message that constitutes ... harassment is conveyed through official employment actions, and therefore evidence that would otherwise be associated with a discrimination claim can form the basis of a harassment claim." (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 708.)

AS such, official employment actions can evidence a harassment claim where the action communicates a hostile or offensive message to the employee. (Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 932-933.)

Here, Plaintiff alleges his age and shoulder injury meet the first element as to protected class. (FAC P.P. 201, 203.)

As the Court has found a sufficient cause of action for discrimination based on disparate treatment above related to Plaintiff's age, the Court finds a sufficient showing here that the circulation of rumors (FAC P.34, 35, 38) and that Plaintiff "was routinely left out of meetings, did not receive feedback on DEPARTMENT issues, did not receive any supervision, and was given the "silent treatment" even in professional communications" (FAC P.27) are sufficiently beyond simple ostracism and routine employment actions.

While the Court notes that some of these appear more directly connected to Plaintiff's alleged whistleblowing or reporting activities, Plaintiff sufficiently alleges that preferential treatment of younger employees underlies the alleged harassment described above. (FAC P.P.20-22, 25.) Therefore, the Court overrules the demurrer to the seventh cause of action.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Visalia-County Civic Center Honorable Bret D. Hillman Presiding- Department 2 Examiner notes for probate matters calendared June 15 - June 17, 2026, that allow for posting: Status: Recommended for Approval (RFA), Appearance Required or Recommended, Approval Conditional Upon, etc. Case Number | Case Name | Type | Status | Comments | VPR050740 |