Jinbo vs. Santa Ana Unified School District

The deadline for filing charges based on an allegedly discriminatory refusal to hire runs from the date plaintiff was notified he or she would not be. (Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 92.) A claim alleging an unlawful failure to promote accrues when the employee had actual or constructive knowledge of the employer’s decision not to promote the employee. (Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 941.)

The continuing violation doctrine comes into play when an employee raises a claim based on conduct that occurred in part outside the limitations period. Provided at least one of the acts occurred within the statutory period, the employer may be liable for the entire course of conduct, including acts predating the statutory period, under the continuing violation doctrine. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823-824; see Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056—not limited to harassment claims, continuing violation doctrine may apply to FEHA claims of disability discrimination or retaliation.)

This theory requires plaintiff to show a series of related, recurring discriminatory acts, at least one of which occurred during the statutory period, plus justification for not filing charges sooner. (See Acuna v. San Diego Gas & Elec. Co. (2013) 217 Cal.App.4th 1402, 1417—doctrine inapplicable absent allegations of continuing discrimination or harassment.)

Defendants argue Plaintiff failed to timely file her CRD complaint because the primary adverse employment action alleged in the SAC (the denial of promotion for the Director of Special Education position) occurred in December 2019, when Plaintiff learned the position would be reopened and later filled by a male employee. Defendants contend Plaintiff’s October 3, 2023 CRD complaint was therefore filed outside FEHA’s three-year limitations period.

However, the SAC alleges more than a single discrete act of discrimination and instead alleges a continuing pattern of discriminatory conduct. Plaintiff alleges Defendants engaged in a continuing pattern of gender-based hostility, favoritism toward male employees, denial of opportunities, reassignment of work, intimidation of female staff, and retaliatory interference with Plaintiff’s advancement opportunities throughout her employment from November 2018 through her resignation in November 2020. (SAC ¶¶ 5, 13-19, 32-37, 45-53.)

Although the promotion denial may constitute a discrete adverse action, Plaintiff alleges it was part of a broader continuing pattern of gender discrimination and hostility that persisted through November 2020. Under the continuing violation doctrine, the statute of limitations does not begin to run until the unlawful conduct ends or the employer makes clear that further efforts to resolve the situation would be futile. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.) Because Plaintiff alleges the discriminatory conduct continued through her resignation in November 2020, the SAC sufficiently alleges a timely CRD filing within three years of the alleged Page 9 of 27

continuing violation. At the pleading stage, these allegations are sufficient to invoke the continuing violation doctrine.

Defendants also argue the SAC exceeds the scope of the CRD complaint because the CRD form identifies November 2, 2021 as the date of the adverse conduct.

However, the CRD complaint expressly alleges hostile work environment, denial of promotion, denial of opportunities and assignments, retaliation, and forced resignation based on gender discrimination. (SAC, Exh. A.) The allegations contained in the SAC are reasonably related to the allegations asserted in the CRD complaint and would reasonably be expected to arise from an investigation into Plaintiff’s claims of gender discrimination and retaliation. (See Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1615 [“if an investigation of what was charged . . . would necessarily uncover other incidents that were not charged, the latter incidents could be included in a subsequent action”].)

Plaintiff’s allegations regarding favoritism toward male employees, denial of advancement opportunities, reassignment of work, and hostility toward female employees provide factual support and context for the same discrimination and retaliation claims asserted in the CRD complaint. Moreover, what is submitted to the CRD “must not only be construed liberally in favor of plaintiff, it must be construed in light of what might be uncovered by a reasonable investigation.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 268.)

Thus, the SAC does not improperly expand beyond the scope of the CRD complaint.

Accordingly, the demurrer on this ground is OVERRULED.

B. First Cause of Action for Gender Discrimination

FEHA makes it unlawful for an employer “to discriminate against the person . . . in terms, conditions, or privileges of employment” because of the person's sex or gender, among other protected categories. (Gov. Code, § 12940, subd. (a).)

A plaintiff claiming discrimination must demonstrate: “(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination . . . and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

The SAC alleges Plaintiff is female and therefore a member of a protected class. (SAC ¶ 1.) The SAC further alleges Plaintiff was qualified for her position and for advancement opportunities, including the Director of Special Education position for which she applied in December 2019. (SAC ¶¶ 35, 45.) The SAC alleges Plaintiff suffered adverse employment actions, including denial of promotion, reassignment of meaningful work opportunities to less-qualified male employees, denial of advancement opportunities, negative references, and interference with her ability to secure employment in Orange County school districts. (SAC ¶¶ 34-36.)

The SAC also alleges facts supporting a discriminatory motive. The SAC alleges Helguera treated female employees harshly, intimidated and demeaned women in the workplace, ignored female employees’ concerns, and favored male employees in workplace interactions and advancement Page 10 of 27

opportunities. (SAC ¶¶ 13-17, 32-33.) The SAC further alleges Helguera “groomed” and promoted less-qualified male employees while limiting opportunities for female employees, including Plaintiff. (SAC ¶¶ 35-36.) The SAC alleges the Director position for which she applied was ultimately awarded to a less-qualified male employee favored by Helguera. (SAC ¶ 35.)

The SAC sufficiently alleges a claim for gender discrimination under FEHA. While Defendants contend Plaintiff lacks standing to assert FEHA claims based on conduct directed at others, the SAC alleges Plaintiff personally suffered adverse employment actions. (SAC ¶¶ 34-36, 48-50.)

Thus, the demurrer to the first cause of action is OVERRULED.

C. Second Cause of Action for Retaliation

“[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

The SAC fails to adequately allege facts demonstrating that Plaintiff engaged in protected activity within the meaning of FEHA or that a causal link existed between any protected activity and the alleged adverse employment actions. Although the SAC alleges Plaintiff sought other employment “in an effort to distance and/or remove herself” from Helguera’s alleged discriminatory conduct, the SAC does not allege Plaintiff communicated those concerns to Helguera, complained about discrimination, opposed unlawful conduct, or otherwise engaged in protected activity known to Defendants. (SAC ¶ 46.) Further, although the SAC alleges Plaintiff participated in a District investigation concerning Helguera on June 9, 2021, Plaintiff had already resigned from SAUSD in November 2020. (SAC ¶¶ 20-21, 53.)

Thus, the demurrer to the second cause of action is SUSTAINED without further leave to amend.

The SAC was Plaintiff’s third attempt to adequately allege facts sufficient to support a retaliation claim, yet Plaintiff still fails to allege facts demonstrating protected activity or a causal connection between any protected activity and the alleged adverse employment actions.

D. Sham Amendment

Under the sham pleading doctrine, if a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations. (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 447.)

Although the SAC places greater emphasis on adverse employment actions directed at Plaintiff personally, the SAC does not directly contradict the First Amended Complaint (“FAC”). The FAC alleged Plaintiff observed discriminatory treatment toward female employees, felt demeaned and intimidated by the work environment, sought other employment because of the hostile environment, and believed Helguera favored male employees for Page 11 of 27

advancement opportunities. (FAC ¶¶ 15-24.) The SAC expands upon those allegations by adding more specific facts regarding denial of promotion opportunities, reassignment of work to male employees, alleged blackballing, and harm to Plaintiff’s health and career. (SAC ¶¶ 34-37, 45-53.) Although Defendants argue the SAC improperly shifts Plaintiff’s theory from observer to direct victim, the amendments are more properly characterized as elaborating upon and clarifying Plaintiff’s prior allegations rather than contradicting them. Accordingly, the SAC does not constitute a sham pleading.

2. Motion to Strike

Defendants move to strike portions of the SAC seeking punitive damages against Helguera (SAC ¶¶ 39, 55, Prayer ¶ 3), and allegations of conduct toward other female employees observed by Plaintiff (SAC ¶¶ 13-17, 32).

A. Punitive Damages

Punitive damages may be awarded in FEHA actions where the defendant is shown by clear and convincing evidence to have acted with “oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a); Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 221.) “Malice” includes despicable conduct carried on with a willful and conscious disregard of another’s rights, while “oppression” involves despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ. Code, § 3294, subd. (c)(1)-(2).) Despicable conduct is conduct so vile or contemptible that it would be despised by ordinary decent people. (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.)

Here, the SAC alleges Helguera engaged in a continuing pattern of gender favoritism and hostility toward female employees, including singling out female employees for intimidation and criticism, favoring male employees for advancement opportunities, denying Plaintiff promotion opportunities in favor of a less-qualified male employee, assigning work opportunities to male employees to limit Plaintiff’s advancement, and allegedly interfering with Plaintiff’s professional opportunities through negative references and blackballing. (SAC ¶¶ 13-17, 32-39, 45-55.) Construing the allegations liberally at the pleading stage, the SAC sufficiently alleges intentional discriminatory conduct and conscious disregard for Plaintiff’s rights to support a punitive damages claim against Helguera. Accordingly, the motion to strike is DENIED.