The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge
ORDER DENYING DEFENDANTS' MOTION TO DISMISS AND REQUIRING MORE DEFINITE STATEMENT
This is a wrongful termination case. Plaintiff Denise Steffens ("Steffens") accuses her former employers Regus Management Group, LLC ("Regus") and HQ Global Workplaces, LLC ("HQ") (collectively "Defendants"), of firing her in retaliation for complaining to her superiors about Regus's allegedly unlawful labor practices. Regus insists that Steffens was fired for underperforming.
Steffens initiated this action on August 15, 2008, alleging six causes of action. Defendants moved to dismiss on December 10, 2008, challenging all but one of them for failing to state a claim under Fed. R. Civ. P. 12(b)(6). (Dkt. No. 5.) In her Opposition Brief, Steffens dropped three causes of action without a fight, leaving the three now at issue: (1) retaliation for whistleblowing in violation ofCal. Lab. Code § 1102.5, (2) age discrimination under the Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code § 12940(a), and (3) wrongful termination in violation of public policy.*fn1 (Dkt. Nos. 8-9.) The last of these is the one cause of action that Defendants' Motion to Dismiss left alone, which leaves only the §1102.5 and § 12940(a) causes of action for the Court to consider here.
Because it is critically relevant to one issue the Court considers below, it is important to add that before Steffens initiated this action, she filed an administrative complaint with the Department of Fair Employment and Housing ("DFEH") on September 7, 2007. (Opp'n to Mot. to Dismiss Ex. 1.) In that document, Steffens complained of both age and gender discrimination and wrongful retaliation.
Steffens began her career with HQ Global Workplaces in 1996. (Opp'n to Mot. to Dismiss 3.) Regus acquired HQ in 2003, and most recently Steffens was the general manager of Emerald Plaza Center, an office complex in downtown San Diego, California. (Compl. ¶ 12.) Steffens was terminated by Regus on July 5, 2007. (Compl. ¶ 14.) Regus maintains that Steffens was fired for cause because she "failed to perform adequately in a new position." (Mot. to Dismiss 1.) Steffens, on the other hand, believes she was fired because she spoke out against certain of Regus's labor practices, and also because of her age; Steffens was 52 when Regus terminated her employment. (Compl. ¶¶ 1, 67-70.)
There are only two causes of action at issue for the purposes of this Motion to Dismiss: retaliation for whistleblowing in violation ofCal. Lab. Code § 1102.5 and age discrimination under the FEHA, Cal. Gov't Code § 12940(a). The Court will address each in turn.
A. Count One - Violation of Cal. Lab. Code § 1102.5
Cal. Lab. Code § 1102.5protects employees who report or merely object to unlawful business practices by making it unlawful to retaliate against them. There are two distinct questions the Court must consider here. First, did Steffens exhaust her administrative remedies -- a prerequisite to her ability to allege a violation of § 1102.5? Second, does Steffens state a viable claim under § 1102.5?
1. Exhaustion of Administrative Remedies
Steffens does not dispute that she had to exhaust her administrative remedies, nor would it be reasonable to. "[I]n order to bring a claim under section 1102.5 . . . plaintiff must exhaust his administrative remedies." Lund v. Leprino Foods Co., No. S-06-0431, 2007 U.S. Dist. LEXIS 46705, at *12 (E.D. Cal. June 20, 2007) (citing Campbell v. Regents of the Univ. of Cal., 35 Cal. 4th 311, 333 (2005)). The case law is unanimous on this point.
What the parties do dispute is whether Steffens has to exhaust her administrative remedies before the Labor Commissior. Steffens maintains she does not; it is enough, she argues, to "resort to one of the multiple administrative remedies" that are available and applicable to her claims. (Opp'n to Mot. to Dismiss 7-8.) Regus argues, initially at least, that she does, citing Neveu v. City of Fresno, 392 F. Supp. 2d 1159, 1180 (E.D. Cal. 2005), for the proposition that "a litigant seeking damages under § 1102.5 is required to exhaust administrative remedies before the Labor Commissior prior to bringing suit." This is a misread on Regus's part, and perhaps also by the Neveu court. Neveu held that "[t]he California Supreme Court [in Campbell] has recently held that a litigant seeking damages under § 1102.5 is required to exhaust administrative remedies before the Labor Commissioner." Yet, there is no mention of the Labor Commissioner specifically anywhere in the text of the Campbell decision. The language that Neveu excerpts from Campbell in support of the above quotation confirms this: "We conclude that absent a clear indication of legislative intent, we should ...