Filed 1/10/00

APPEAL from the Superior Court of San Bernardino County. Peter H. Norell, Judge. Affirmed.

Law Offices of Leo James Terrell and Leo James Terrell for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Martin H. Milas, Senior Assistant Attorney General, Sylvia M. Diaz, Supervising Deputy Attorney General, and Michael E. Whitaker, Deputy Attorney General, for Defendant and Respondent.

1. Introduction

Carla A. Thomas (Thomas), an African-American woman, began working at the California Department of Corrections (Department) as a corrections officer in 1987. She alleges that beginning in 1989 she was subjected to racial and gender discrimination and to retaliation for her reports of such discrimination, all in violation of the California Fair Employment and Housing Act.

She appeals from the trial court judgment sustaining the Department’s demurrer to her first amended complaint without leave to amend. She contends that her first amended complaint sufficiently alleged that the Department was guilty of adverse employment actions in retaliation for her charges of discrimination, and, in any event, the trial court erred in sustaining the demurrer without leave to amend.

We affirm the judgment because we conclude that Thomas failed to exhaust her administrative remedies and because the proposed second amended complaint failed to state a cause of action.

2. Facts

Thomas began work for the Department in March 1987. She began to complain about racial and sexual discrimination in 1989. In May 1993 Thomas filed a complaint with the Equal Employment Opportunity Commission (EEOC) charging the Department with retaliation for her September 1992 charge of discrimination. The alleged retaliation consisted of refusing to allow her a choice of posts or days off and falsely accusing her of refusing to obey orders and "locking down a unit."

Thomas also filed a charge with the Fair Employment and Housing Agency (FEHA) in May 1996 alleging harassment by a correctional sergeant in March and April 1996 because of her sex and race and because she filed an EEOC complaint.

In August 1997 Thomas filed another FEHA complaint. She alleged retaliation consisting of the Department’s refusal to provide her medical aid when she became ill at work and its intimidation of coworkers whose depositions she wanted to take in connection with her charges against the Department.

After receiving the necessary right to sue letters from the FEHA, Thomas filed this action on November 20, 1997.

In April 1998 Thomas filed another FEHA complaint in which she alleged retaliation in the form of receiving orders to perform various duties from supervisors who were not "her" supervisors.

Thomas’s original judicial complaint alleged Department retaliation in violation of FEHA consisting of refusal to allow medical treatment for two separate medical conditions occurring at work and intimidation of employees whose depositions she sought in connection with her judicial proceeding. Thomas expanded on her retaliation claims when she filed her first amended complaint in June 1998, to include: (1) improper docking of pay despite a medical excuse, (2) undeserved negative performance evaluation, (3) unwarranted interference with her appointment to a supervisory committee of the Chino Valley Federal Credit Union, (4) a series of undeserved negative job evaluations which resulted in a punitive job change and negative reports in her personnel file, and (5) failure of the Department to deliver her a check on a timely basis for her shift differential and for overtime.

The Department demurred to the First Amended Complaint alleging that two of the retaliatory acts (improper docking of Thomas’s January 1994 check and an undeserved April 1996 negative evaluation) had already been adjudicated in a federal lawsuit filed by Thomas. The Department also argued that the remaining retaliatory acts alleged by Thomas did not rise to the level of an adverse employment action, that they were too remote to satisfy a causal connection, and that Thomas did not exhaust her administrative remedies because the acts alleged in the civil complaint were not charged in her FEHA claims.

3. Standard of Review

When we review the trial court’s sustaining of a demurrer without leave to amend, "we assume that all facts pleaded in the complaint are true, and we give the complaint a reasonable interpretation, reading it as a whole and its parts in context. We review the complaint de novo to determine whether the complaint alleges facts sufficient to state a cause of action under any legal theory." (Begier v. Strom (1996) 46 Cal.App.4th 877, 881.)

A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations. (Yue v. City of Auburn (1992) 3 Cal.App.4th 751, 757.) In order to overturn demurrers sustained by the trial court, a plaintiff must overcome all legal grounds on which the trial court sustained the demurrers. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880.) Where "‘a demurrer is sustained to the original complaint, denial of leave to amend constitutes an abuse of discretion if the pleading does not show on its face that it is incapable of amendment.’ (California Federal Bank v. Matreyek (1992) 8 Cal.App.4th 125, 130-131, original italics, citing King v. Mortimer (1948) 83 Cal.App.2d 153, 158.)" (Association of Community Organizations For Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302, fn. 2.)

4. Prima Facie Case of Retaliation

"‘To establish a prima facie case of retaliation, a plaintiff must show that she engaged in protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two.’ (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 614.)" (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1125.)

5. Res Judicata

We agree with Department that res judicata bars the claims of Thomas involving an unwarranted pay dock and the April 8, 1996 negative performance evaluation. Both of those issues were raised in the Thomas’s federal district court action. The court’s summary judgment denying those claims bars their reassertion. (7 Witkin, Cal. Procedure (4th ed.) Judgment, § 348, p. 906.)

6. Adverse Employment Action

Department argues that the remaining claims of retaliatory conduct are not cognizable because they did not constitute "adverse employment action." Since there appear to be no California decisions defining the scope of an adverse employment action, Department quite properly relies upon federal authority. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475-476.)

The federal authority on the definition of adverse employment action varies from federal circuit to circuit. Most circuits agree that an adverse employment action requires "a materially adverse change in the terms of employment." (Kocsis v. Multi-Care Management, Inc. (6th Cir. 1996) 97 F.3d 876, 885.)

The inquiry as to whether an employment action is adverse requires a case-by-case determination based upon objective evidence. (Blackie v. State of Me. (1st Cir. 1996) 75 F.3d 716, 725.) As the First Circuit observed in Blackie, "[w]ork places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action." (Ibid.) If every minor change in working conditions or trivial action were a materially adverse action then any "action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." (Williams v. Bristol-Myers Squibb Co. (7th Cir. 1996) 85 F.3d 270, 274.)

Department suggests that adverse employment action is limited to actions like discharge, demotion, and refusal to hire or promote. In Collins v. State of Ill. (7th Cir. (1987) 830 F.2d 692, 703, the court said: "We believe adverse job action is not limited solely to loss or reduction of pay or monetary benefits. It can encompass other forms of adversity as well. For example, other courts have found adverse job impact, where there was no reduction in salary or benefits, in an employer’s moving an employee’s office to an undesirable location, transferring an employee to an isolated corner of the workplace, and requiring an employee to relocate her personal files while forbidding her to use the firm’s stationary and support services." (Ibid., fns. omitted.)

While the Fifth Circuit broadly interprets the scope of an adverse employment action (Rogers v. Equal Employment Opportunity Com'n (5th Cir. 1971) 454 F.2d 234), most circuits require that the action "be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." (Crady v. Liberty Nat. Bank and Trust Co. (7th Cir. 1993) 993 F.2d 132, 136.) The employment action must be both detrimental and substantial. (Bernheim v. Litt (2d Cir. 1996) 79 F.3d 318, 327, conc. opn. of Jacob, C.J.)

We must analyze Thomas’s complaints of adverse employment actions to determine if they result in a material change in the terms of her employment, impair her employment in some cognizable manner, or show some other employment injury. Even if we broadly interpret the definition of adverse employment action based upon the sweeping provisions of the California Fair Employment and Housing Act (the Act) enacted to "protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation" (Gov. Code, § 12920), we do not find that Thomas’s complaint alleges the necessary material changes in the terms of her employment to cause employment injury. Most of the actions upon which she relies were one time events, such as a delayed check, an early job change, and failure to receive one overtime check. The other allegations, such as the general assertion that Thomas was assigned more duties than other employees in the same unit, are not accompanied by facts which evidence both a substantial and detrimental effect on her employment.

7. Employment Connection Required

Our conclusion on the issue of adverse employment action does not resolve the issues raised by the Department. A claim of retaliation must be based upon an adverse employment action. Government Code section 12940 makes the employment practices described in that section unlawful. Federal law is similar. (Veprinsky v. Fluor Daniel, Inc. (7th Cir. 1996) 87 F.3d 881, 886.) Thomas’s complaint that a department employee interfered with her appointment as chairperson of the supervisory committee for the Chino Valley Federal Credit Union was not an employment related action and therefore Thomas is not entitled to pursue that claim under the FEHA.

8. Exhaustion of Remedies

Even if Thomas’s complaints cumulatively rise to the level of adverse employment action, she still was required to exhaust her administrative remedies under FEHA before seeking a civil remedy. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1612.) Failure to exhaust the administrative remedy is a jurisdictional defect. (Id., at p. 1613.) Generally, a plaintiff may "bring only those claims that were included in" the charge submitted to the administrative agency or that are "‘like or reasonably related to the allegations of the charge and growing out of such allegations.’ (Jenkins v. Blue Cross Mut. Hosp. Ins. 538 F.2d 164, 167 (7th Cir.) (en banc), cert. denied, 429 U.S. 986 . . . ." (McKenzie v. Illinois Dept. of Transp. (7th Cir. 1996) 92 F.3d 473, 481.) This rule serves the purpose of allowing the administrative agency and the "employer an opportunity to settle the dispute through conference, conciliation, and persuasion, and of giving the employer some warning of the conduct about which the employee is aggrieved." (Id., at pp. 481-482, quoting from Cheek v. Western & Southern Life Ins. Co. (7th Cir. 1994) 31 F.3d 497, 501.)

To determine whether Thomas exhausted her administrative remedies we must analyze whether the allegations in Thomas’s civil action are like, or reasonably related to the charges in her FEHA claim or whether the administrative investigation of her charges would likely uncover the allegations contained in the complaint but not submitted to the agency. (Okoli v. Lockheed Technical Operations Co., supra, 36 Cal.App.4th at p. 1615.)

In paragraph 16, subparagraph d of the first amended complaint, Thomas alleges that on June 9, 1997, she was subjected to a punitive job change that she claims was retaliation for her earlier filed grievances. Those allegations were not reasonably related to the charges submitted by Thomas to FEHA in 1993, 1996, or 1997. Nor was FEHA likely to discover those claims in the course of its investigation of the charges which Thomas submitted.

Subparagraph e of paragraph 16 of the first amended complaint alleges that Thomas was assigned more duties than other employees in the same unit. Thomas submitted that charge to FEHA in her April 13, 1998 complaint.

Subparagraphs f, g, and h of the first amended complaint alleged that in May 1978 Thomas received a negative evaluation based upon an excused medical absence. As a result, Department placed her on a list entitled "Extraordinary Use of Sick Leave." Thomas alleged that the list was placed in her personnel file, which would affect her promotions and benefits the following year. Since that evaluation occurred after her last submittal to FEHA and was not related to prior charges, the agency investigation of her earlier charges would be unlikely to uncover the alleged incident. (See Okoli v. Lockheed Technical Operations Co., supra, 36 Cal.App.4th at p. 1615.)

Finally, subparagraph i of paragraph 16 of the first amended complaint alleged that Thomas was denied a timely shift differential and overtime check on June 13, 1998. She did not amend her FEHA or EEOC charges to include that claim. That charge was not related to, nor likely to have been uncovered by the administrative agency in the course of investigations.

With the possible exception of subparagraph 16 e, Thomas had not previously submitted the allegations of unlawful conduct alleged in the first amended complaint to either FEHA or EEOC. Nor were the claims contained in those allegations reasonably related to charges previously submitted by Thomas. Thomas therefore failed to exhaust her administrative remedies as to the allegations contained in subparagraphs 16 c, d, and f through i.

9. Subparagraph 16 e

In subparagraph 16 e of the first amended complaint, Thomas alleged that she was discriminated against in retaliation for filing earlier charges against the Department. She alleged that on April 13, 1998, she filed a charge with FEHA in which she complained that women were assigned more duties than men and that supervisors, other than "my two supervisors," were ordering her to perform duties.

Even if we interpret the definition of adverse employment action broadly, we do not find that these charges standing alone rise to the level of adverse employment actions. In addition to the fact that there is no detail as to nature or extent of the "extra duties" allegedly imposed upon her, Thomas’s complaint is no more than that she was asked to perform her duties. Even interpreting the definition of adverse employment action broadly, we do not find these charges satisfy the definition of an adverse employment action.

10. Refusal to Grant Leave to Amend

Thomas complains that the trial court should have allowed her to file a second amended complaint to state claims under the Americans With Disabilities Act (ADA) and the Family Care and Medical Leave Act (Family Care Act). That request was made by written motion on July 31, 1998.

Thomas’s proposed second amended complaint failed to allege the most basic elements of a cause of action under either the ADA or the Family Care Act. She did not allege, nor does she contend, that she exhausted her administrative remedies. With respect to the ADA, she did not allege she was a qualified individual with a disability, i.e. that her physical impairment substantially limited one or more of her major life activities. (42 U.S.C. § 12102(2)(A).) She did not allege that she was an individual with a disability who, with or without reasonable accommodation, could perform the essential functions of the employment position she held. (42 U.S.C. § 12111(8).) She did not allege what reasonable accommodation the Department should have made to satisfy her disability. (42 U.S.C. § 12111(9).)

Her efforts to plead a cause of action under the California Family Care Act were also unavailing. She did not allege that she had requested leave under that act because her "own serious health condition . . . [made] the employee unable to perform the functions of the position of that employee . . . ." (Gov. Code, § 12945.2, subd. (c)(3)(C).) Nor did she allege that any request for the leave authorized under Government Code section 12945.2 had been refused by the Department.

In short, the proposed second amended complaint failed to state any new causes of action under the ADA or the Family Care Act. In addition, the proposed second amended complaint contained all of the defects for which the demurrer to the first amended complaint was sustained. The trial court properly denied the request to file the second amended complaint.

11. Disposition

The judgment is affirmed. Costs are awarded to respondent.