Chambers vs. Nextgen Laboratories, Inc.

As argued by Defendant, this action appears analogous to Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.app.5th 721 (Doe), wherein the Court explained: “[H]arrasment claims are based on a type of conduct that is avoidable and unnecessary to job performance. No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives of personnel management.” (Id. at pp. 736-737.)

In Doe, the Court of Appeal found conduct similar to the conduct alleged herein “is not harassment because it was not avoidable conduct superfluous to [Defendant’s] job description.” (Doe, supra, 43 Cal.App.5th at p. 737.) “That Doe felt his supervisor performed his duties in a negative or malicious way does not transform his conduct into disability harassment.” (Ibid.)

At most, outside of personnel management actions, Plaintiff alleges Defendant called her “difficult.” (¶25 of TAC.)

Citing Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, Plaintiff notes that a “single offensive act” that is committed by a supervisor, may be sufficient to establish liability for a hostile work environment. (Id. at p. 36); however, the single offensive act referenced in Dee was a racial slur. (Ibid.) No comparable allegations are made herein. As indicated above, at most, Plaintiff alleges she was called “difficult” when she resisted returning to work in person. (¶25 of TAC.)

Harassment must be “based on [the plaintiff’s membership in an enumerated class]” and be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” (Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 170.) The conduct must be such that it “would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee.” (Ibid.)

Similarly, while authority allows a single instance of harassing conduct to support a claim, a single incident must be “extremely serious” to do so. (See Bailey v. San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611, 629 [“This standard allows that a ‘an isolated incident of harassment, if extremely serious, can create a hostile work environment.’”])

Here, the allegation Defendant called Plaintiff “difficult” is insufficient to allege severe or pervasive disability harassment and, as a result, the demurrer to the second cause of action is sustained. Page 6 of 15

Next, Plaintiff asserts several Labor Code claims against Defendant Anthony Graves. In furtherance of these claims, the Complaint alleges “Employers and DOES 1- 20 were Plaintiff’s employers, joint employers and/or special employers within the meaning of the Labor Code and Industrial Welfare Commission Order No. 4-2001....” (¶8 and ¶43 of TAC).

To the extent Plaintiff relies on the above to establish Defendant Graves qualifies as an “employer” for purposes of all Labor Code provisions, the above statement is a mere legal conclusion.

“Because only factual allegations are considered on demurrer, we must disregard any ‘contentions, deductions or conclusions of fact or law alleged [in the complaint].’” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173.)

Beyond the above conclusory allegation, Plaintiff does not allege that Defendant Anthony Graves was her employer. Instead, Mr. Graves is alleged to be “top personnel of NGI” and its “Chief Operating Officer.” (¶7 of TAC.) Additionally, per the Complaint, Plaintiff was hired by NextGen Laboratories, Inc. in 2019, prior to Defendant Graves joining NGI in 2022. (¶19 and ¶21 of TAC.)

Further, as noted by Defendant, the California Supreme Court in Martinez v. Combs (2010) 49 Cal.4th 35, held that “the IWC’s definition of ‘employer’ does not impose liability on individual corporate agents within the scope of their agency.” (Id. at p. 66.)

Within opposition to this demurrer, Plaintiff concedes Labor Code section 558.1 is the basis of her claims against Defendant Graves. (See Opposition: 10:7-12:22.)

This provision states: “Any employer or other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates, or causes to be violated, Sections 203, 226, 226.7, 1193.6, 1194, or 2802, may be held liable as the employer for such violation.” (Lab. Code, § 558.1, subd. (a).)

To be held liable under section 558.1, the “other person” “must either have been personally involved in the purported violation of one or more of the enumerated provisions; or, absent such personal involvement, had sufficient participation in the activities of the employer, including, for example, over those responsible for the alleged wage and hour violations, such that the [other person] may be deemed to have contributed to, and thus for purposes of this statute, ‘cause[d]’ a violation.” (Usher v. White (2021) 64 Cal.App.5th 883, 896-897.)

Within the wage and hour claims, Plaintiff alleges Defendants failed to pay compensation for all hours worked (¶134 of TAC [ninth cause of action]), failed to pay minimum wage (¶153-¶155 of TAC [tenth cause of action]), failed to pay overtime (¶162-¶164 of TAC [eleventh cause of action]), failed to provide meal and rest breaks (¶184-¶192 of TAC [thirteenth cause of action]), failed to provide correct itemized statements (¶198-¶201 of TAC [fourteenth cause of action]), and failed to pay all wages due upon termination (¶205 of TAC [fifteenth causes of action].) Page 7 of 15

The Complaint proceeds to allege Defendant Graves “controlled pay and hours, was aware of the hours that employees worked,” “aware that Plaintiff worked in excess of 8 hours a day and 40 hours a week, aware that plaintiff did not receive all of her meal and rest breaks,” and “was personally involved in all aspects of the employee wages....” (¶7 and ¶42 of TAC.) The Complaint additionally alleges “Graves knew that Ms. Chambers was working well beyond 40 hours and that she was underpaid and/or not paid correctly.” (¶22 of TAC.)

Importantly, however, the Complaint concedes the identified labor code provisions apply only to non-exempt employees. (See ¶162 and ¶172 [eleventh cause of action], ¶194 [thirteenth cause of action], ¶198, ¶200 [fourteenth cause of action], and ¶206 [fifteenth cause of action].) Similarly, according to the Complaint, Plaintiff’s misclassification as exempt caused the specified labor code violations. (¶40 and ¶44-¶51 of TAC.) Plaintiff alleges that, “[b]ecause Employers misclassified Plaintiff as an exempt employee” she was not paid for all hours worked, paid overtime, provided meal and rest breaks or given itemized statements. (¶46 of TAC; See also ¶186 and ¶193 of TAC.) “Employers” is defined by the Complaint as NextGen Laboratories, Inc. (¶3 of TAC.)

Notably, there are no allegations that Defendant Graves misclassified Plaintiff, no allegations Defendant Graves knew Plaintiff was misclassified, and no allegations Defendant Graves had the ability to correctly classify her.

Indeed, per the Complaint, Plaintiff was hired by NextGen Laboratories, Inc. (and presumably misclassified), in 2019, prior to Defendant Graves joining NGI in 2022. (¶19 and ¶21 of TAC.)

Within the Opposition, Plaintiff appears to concede the above, as she states: “Plaintiff makes no contention as to who originally misclassified [her].” (Opposition: 10:15-17.) Instead, Plaintiff asserts liability attaches as “even if Graves did not originally classify Plaintiff, he is liable where he knowingly required Plaintiff to continue working unlawful hours without proper compensation, thereby causing ongoing violations.” (Opposition: 10:16-19.)

This position is contrary to authority.

In Usher v. White (2021) 64 Cal.App.5th 883, the Court found liability pursuant to Labor Code section 558.1 did not attach to the individual identified therein as “the undisputed facts show Shirley did not participate in the decision of White Communications to classify plaintiffs as independent contractors, which classification is the basis of plaintiff’s class and seven subclass allegations, and 10 causes of action.” (Id. at p. 897.) The Court concluded that plaintiff therein had not established “the elements of their causes of action, which, as we have repeatedly noted, are conditioned on a misclassification theory.” (Id. at p. 897.)

Similar to Usher, the Complaint does not allege Defendant was responsible for the misclassification that caused the identified violations.

With respect to the twelfth cause of action, Plaintiff again concedes liability against Defendant Graves, for violation of Labor Code section 2802, relies on Labor Code section 558.1. (Opposition: 12:20-22.) Plaintiff does not identify any allegations which indicate Defendant Graves had control over the reimbursement of expenses. Page 8 of 15

Based on all the above, the demurrer to the ninth through fifteenth causes of action is sustained.

Plaintiff concedes the UCL claim is “derivative of the underlying Labor Code violations.” (Opposition: 12:24.) “Where a UCL Claim is derivative of another claim that fails as a matter of law, the UCL claim must similarly fail.” (Nein v. HostPro, Inc. (2009) 174 Cal.App.4th 833, 841.)

Based on the above, the demurrer to the sixteenth cause of action is sustained.