ORDER GRANTING DEFENDANT'S MOTIONS TO DISMISS Docs. 70, 71
JENNIFER L. THURSTON, Magistrate Judge.
Defendant Bear Valley Community Services District ("District" or "Defendant") seeks dismissal of the third and fourth causes of action raised by Karen Harris ("Plaintiff") in her Second Amended Complaint, asserting Plaintiff failed to exhaust administrative remedies prior to pursuing her claims for retaliation and wrongful termination of violation of Cal. Labor Code § 1102.5. (Docs. 70, 71). Plaintiff filed her opposition on October 1, 2013 (Doc. 73), to which Defendant filed a reply on October 4, 2013. (Doc. 74).
For the following reasons, the Court finds Plaintiff was required to exhaust administrative remedies as provided in Cal. Labor Code § 98.7, and Defendant's motion to dismiss is GRANTED.
I. Factual and Procedural History
Plaintiff is a former dispatcher with Bear Valley Police Department ("BVPD"). (Doc. 69 at 2). She was hired as a part-time police dispatcher on September 16, 2007, and promoted to a full-time dispatcher on November 27, 2006. (Doc. 69 at 4, ¶ 11).
Plaintiff alleges she "participated in an internal investigation of allegations of pregnancy discrimination and retaliation brought by a Female Police Officer... against Chief Freeman and others" between late July and August 2011. (Doc. 69 at 4, ¶ 11) (emphasis omitted). Plaintiff reports she "provided testimony, interviews, assisted and fully cooperated with the Internal Affairs investigation." ( Id. ) Following her participation with the Internal Affairs investigation, Plaintiff alleges Chief Freeman "embarked on a campaign of retaliation" against her. ( Id., ¶ 12). Plaintiff asserts she was summoned by Chief Freeman into his office on January 31, 2012, "and disciplined... for her union activity of advocating for changing employees' schedules based on seniority as had been the practice in the past." ( Id. ) In addition, Plaintiff asserts Chief Freeman disciplined her "for a frivolous and false accusation that [she] had not supported a new dispatcher." ( Id. )
According to Plaintiff, Chief Freeman "elevated his retaliatory and discriminatory attack" on February 16, 2012 "by falsely accusing and charging her" with obstruction of justice and petty theft in violation of California Penal Code Sections 148 and 488. (Doc. 69 at 5, ¶ 13). Plaintiff asserts a birdbath "had been gifted to [her] by a long time quilting friend." ( Id. ) Plaintiff reports her friend sold her house after gifting the birdbath to Plaintiff, and the new homeowners reported theft of the birdbath. ( Id. ) However, Plaintiff asserts the new homeowners did not want to press charges after the birdbath was returned. ( Id. ) She alleges the new homeowners wrote a letter to the police, which stated:
Dear Bear Valley Police, We recently reported the theft of a bird bath... The person who took it has returned the bird bath and we do not want to press charges against [Plaintiff]. We believe there were unclear areas of communication with [Plaintiff] and the previously (sic) owners. Thank you for your immediate help in clearing up the situation.
(Doc. 69 at 5-6, ¶ 13). Plaintiff contends that after "the home owners instructed the BVPD to... not press charges, " Chief Freeman, Sgt. Motley, and Officer Walthers "ignored, suppressed, [and] buried" this note, concealing it from the Kern County District Attorney. ( Id. at 5-6, ¶¶ 13-14). She alleges Sgt. Watts "committed perjury by falsely filing a Probable Cause Declaration', asserting Facts establishing probable cause for arrest of [Plaintiff] for a violation of Penal Code Section 488 - Theft and Penal Code Section 148(a)(1)-Interfering with an Investigation.'" ( Id., ¶ 14).
On February 22, 2012, the Kern County District Attorney filed a misdemeanor complaint against Plaintiff for violation of Cal. Penal Code § 488, stating: "On or about and between December 21, 2011 and February 1, 2012, Karen Jane Harris, did willfully and unlawfully steal, take, or carry away the personal property of another...." (Doc. 69 at 6-7, ¶ 16). Plaintiff was placed on paid administrative leave on February 24, 2012, and her employment with the BVPD was terminated on March 22, 2012. ( Id. at 7, ¶¶ 18-19). She reports the Kern County District Attorney requested the charges against Plaintiff be dismissed on June 29, 2012. ( Id., ¶ 17).
According to Plaintiff, "other similarly situated employees who had faced more serious criminal charges" did not receive the same treatment as she. (Doc. 69 at 7-8, ¶¶ 20-23). She alleges: "[o]ther similar situated employees, most of whom were men" of the District and BVPD were "treated more favorably... because employees have engaged in conduct that violated laws and the polices... [and] no disciplinary action was taken against these employees." ( Id. at 8, ¶ 23). In addition, Plaintiff alleges Chief Freeman refused to allow her, "a woman in her early sixties, to attend the training classes, " while "[h]e allowed the younger women to attend training." ( Id. at 9, ¶ 30). She asserts also that individuals "sought and received personal favors, including sexual favors, from the younger women in exchange for more favorable terms and conditions of employment, " and she "refused to partake in such changes." ( Id. at 11, ¶ 30). Therefore, Plaintiff contends her "age and gender were motivating factors for Defendant's discriminatory treatment." ( Id. )
Based upon these allegations, Plaintiff identified four causes of action in her Second Amended Complaint against the District: (1) retaliation in violation of California's Fair Housing Employment and Housing Act ("FEHA") (2) discrimination - disparate treatment in violation of Title VII and FEHA; (3) wrongful termination in violation of public policy pursuant to Title VII, FEHA, and Cal. Labor Code § 1102.5; and (4) retaliation in violation of Cal. Labor Code § 1102.5. (Doc. 69 at 12-16). She asserted her administrative remedies were exhausted "by submitting charges of discrimination with the DFEH and EEOC." ( Id. at 3).
The District contends Plaintiff's charges with the DFEH and EEOC were insufficient for Plaintiff to exhaust her administrative remedies as provided in Cal. Labor Code § 98.7, and that as a result she fails to state a claim for wrongful termination and ...