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Imel v. County of El Dorado


June 28, 2010


The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge


This matter is before the court on defendant County of El Dorado's (the "County" or "defendant") motion to dismiss plaintiff Linda Imel's ("Imel" or "plaintiff") complaint pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6). Plaintiff opposes the motion. For the reasons set forth below,*fn1 defendant's motion is GRANTED in part and DENIED in part.


Plaintiff Imel was employed by defendant County with its Department of Child Support Services ("DCSS"). (Compl., filed Mar. 22, 2010, ¶ 5.) She was hired by DCSS on or about March 11, 2000 and worked continuously for the County over the next 10 years. (Id. ¶ 6.) During the vast majority of that time, she received exemplary performance reviews and appraisals from her supervisors and consistently received merit raises. (Id.)

On or about September 17, 2008, management began to criticize plaintiff's appearance as "unprofessional." (Id. ¶ 7.) Plaintiff was called into an individual meeting after management had chastised all the employees about the perceived inadequacies of their attire. (Id. ¶ 9.) Plaintiff was the only employee who demanded her union shop steward accompany her in the meeting. (Id.)

At the same time, management also found reasons to reprimand plaintiff. (Id. ¶ 8.) Specifically, she was chastised for failing to read an email and consequently, failing to attend a workshop. Subsequently, on October 23, 2009, after plaintiff committed a clerical oversight in failing to generate a preliminary notice to a consumer, she was summarily terminated. There was no progressive discipline, and plaintiff contends that her "Skelley" hearing was "a farcical kangaroo court." Plaintiff alleges that at the time of her termination she was nearing a step-up in her benefits due to her seniority and years on the job.

Plaintiff contends that the proffered reasons for her termination were pretext for (1) retaliating against her for asserting her rights; and (2) terminating "costlier older workers and the costly retirements to which they were entitled, as well as the costly health care they needed and had earned." (Id. ¶¶ 8-9.) Plaintiff further contends that after her termination, she did not receive her earned wages or accrued benefits in a timely fashion and did not receive any interest or penalties on the delayed payments.

On March 22, 2010, plaintiff filed a complaint, alleging claims against the County for (1) violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623; (2) unfair labor practice in violation of 29 U.S.C. § 158;*fn2 (3) failure to pay wages when due in violation of California Labor Code § 218.6; and (4) retaliation in violation of California Labor Code § 1102.5.


Under Federal Rule of Civil Procedure 8(a), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Under notice pleading in federal court, the complaint must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). "This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

On a motion to dismiss, the factual allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege "'specific facts' beyond those necessary to state his claim and the grounds showing entitlement to relief." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.

Nevertheless, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; Iqbal, 129 S.Ct. at 1950 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

Ultimately, the court may not dismiss a complaint in which the plaintiff has alleged "enough facts to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). Only where a plaintiff has failed to "nudge [his or her] claims across the line from conceivable to plausible," is the complaint properly dismissed. Id. at 1952. While the plausibility requirement is not akin to a probability requirement, it demands more than "a sheer possibility that a defendant has acted unlawfully." Id. at 1949. This plausibility inquiry is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.



Defendant moves to dismiss plaintiff's first claim for relief for discrimination in violation of the ADEA on the grounds that plaintiff has failed to plead sufficient facts to state a claim. Specifically, defendant contends that plaintiff fails to allege her age or date of birth and that she insufficiently alleges a connection between her age and an adverse employment action.

The ADEA provides that it is unlawful for an employer "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."

29 U.S.C. § 623(a)(1). A plaintiff may establish a prima facie claim of disparate treatment on the basis of age by demonstrating that she was "(1) at least forty years old; (2) performing [her] job satisfactorily; (3) discharged; and (4) either replaced by substantially younger employees with equal or inferior qualifications or discharged under circumstances otherwise 'giving rise to an inference of age discrimination.'" Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (quoting Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000)). Further, a plaintiff must demonstrate "that age was the 'but-for' cause of the employer's adverse decision." Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2350 (2009).

While plaintiff does not specifically allege her age or date of birth, she asserts that she is of an "advanced age" and that she was nearing an increase in her benefits "due to her seniority and years on the job." (Compl. ¶¶ 8, 10.) Plaintiff also alleges that during the majority of her time on the job, she consistently received positive performance reviews and appraisals from her supervisors. (Compl. ¶ 6.) Plaintiff further contends that she was discharged because she the County sought to save money by discharging older employees and thus, the reasons given for her reprimands and subsequent discharge were pretextual. (Compl. ¶ 8.)

Therefore, at this stage of the litigation, where plaintiff's allegations must be taken as true and reasonable inferences drawn therefrom, plaintiff has stated a plausible claim for discrimination under the ADEA.

2. California Labor Code § 1102.5

Defendant moves to dismiss plaintiff's claim for violation of California Labor Code § 1102.5 on the basis that common law actions against public entities for wrongful termination or retaliation are barred by California Government Code § 815(a). Defendant also contends that the claims should be dismissed for failure to comply with the California Tort Claims Act ("CTCA").

1. California Government Code § 815

California Government Code § 815(a) provides that "[a] public entity is not liable for an injury" except as otherwise provided by statute. Section 815(a), therefore, "abolishes common law tort liability for public entities." Lloyd v. County of Los Angeles, 172 Cal. App. 4th 320, 329 (2009).

However, in this case, plaintiff does not allege common law torts against the County. Rather, plaintiff alleges claims under California Labor Code § 1102.5, which provides that an employer may not retaliate against an employee for exercising rights provided by the statute. Defendant has failed to set forth any law or argument that any government immunity provision bars alleged statutory violations of the California Labor Code. See Thornborough v. W. Placer Unified Sch. Dist., No. 2:09-cv-2613, 2010 WL 2179917, at *15 (E.D. Cal. May 27, 2010) (holding that § 815(a) did not bar claims against a district for an alleged violation of California Labor Code § 1102.5); see also Chapin v. Aguirre, No. 05CV1906 R(POR), 2007 WL 1660740, at *8 (S.D. Cal. June 7, 2007) (holding that a similar governmental immunity provision did not bar claims alleged under California Labor Code § 1102.5). Accordingly, defendant's argument that plaintiff's statutory claim is barred by § 815(a) is without merit.

2. California Tort Claims Act

In order to state a tort claim for money or damages against a public entity, the CTCA requires the timely presentation of a written claim in whole or in part within either six months or a year after the accrual of the cause of action depending on the nature of the tort. Cal. Gov't Code § 911.2. Under Government Code § 945.4, [N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to by presented in accordance with Chapter 1 (commencing with section 900) and Chapter 2 (commencing with section 910) of Part 3 of this division until a written claim therefore has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board.

Cal. Gov't Code § 945.4. Because all governmental tort liability is based on statute, as opposed to common law tort doctrine, the CTCA also applies to statutory claims for damages against a public entity. See Shoemaker v. Myers, 2 Cal. App. 4th 1407, 1425-26 (1992) (holding that the claim presentation requirement of the CTCA applies to a statutory whistleblower claim); Konig v. State Bar of Cal., No. C04-2210, 2004 WL 2091990, at *7 (N.D. Cal. Sept. 16, 2004) (holding that compliance with CTCA was required for plaintiff's claim under California Labor Code § 1102.5).

The claim presentation requirement serves (1) to give the public entity prompt notice of a claim in order to investigate the strengths and weakness of the claim while the evidence is fresh and witnesses are available; (2) to provide an opportunity for "amicable adjustment, thereby avoiding expenditure of public funds in needless litigation;" and (3) to inform the public entity of potential liability in preparing its budget. Spencer v. Merced County Office of Educ., 59 Cal. App. 4th 1429, 1434-35 (1997). A "public entity" includes "the State, the Regents of the University of California, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State." Cal. Gov't Code § 811.2.

A plaintiff has the burden of pleading compliance with the California Tort Claims Act in the complaint. Wood v. Riverside General Hospital, 25 Cal. App. 4th 1113, 1119 (1994). Moreover, compliance with the CTCA is mandatory. City of San Jose v. Superior Court, 12 Cal. 3d 4447, 454 (1974). Federal courts have recognized these requirements. See Ortega v. O'Connor, 764 F.2d 701, 707 (9th Cir. 1985), rev'd on other grounds, 107 S.Ct. 1492 (1987) (failure to comply with claim-filing requirements imposed by California Tort Claims Act bars pendent state claims).

Plaintiff's complaint fails to allege compliance with the CTCA. However, plaintiff attached a form to her opposition that appears to be a government claim form submitted to the State of California on April 5, 2010. (Ex. A to Pl.'s Opp'n to Mot. to Dismiss, filed June 1, 2010.) From its face, this form was not submitted to the public entity against whom plaintiff filed suit, the County. Rather, it appears to be submitted to the State. As such, plaintiff has failed to plead compliance with the CTCA. See Spencer, 59 Cal. App. 4th at 1433-34, 1440 (affirming dismissal of claim where the plaintiff filed the government tort claim with the wrong public entity).

Therefore, defendant's motion to dismiss plaintiff's claim for violation of California Labor Code § 1102.5 is GRANTED with leave to amend.

3. Failure to Pay Wages

Finally, defendant moves to dismiss plaintiff's claim for failure to pay wages on the basis that the court should decline to exercise supplemental jurisdiction over state law claims if the federal claims are dismissed. Because plaintiff has sufficiently pled a claim for violation of the ADEA, defendant's argument is without merit.


For the foregoing reasons, defendant's motion to dismiss plaintiff's complaint is GRANTED in part and DENIED in part. Plaintiff is granted fifteen (15) days from the date of this order to file a first amended complaint in accordance with this order. Defendant is granted thirty (30) days from the date of service of plaintiffs' first amended complaint to file a response thereto.


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