Young v. County of Los Angeles CA2/5

Filed 11/19/20 Young v. County of Los Angeles CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

LORNA YOUNG, B294386

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC609911)
v.

COUNTY OF LOS ANGELES
et al.,

Defendants and
Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard E. Rico, Judge. Reversed.
Law Offices of Angel J. Horacek, Angel James Horacek,
Barbara DuVan-Clarke, for Plaintiff and Appellant.
Martin & Martin, Rachel D. Salvin, for Defendants and
Respondents.
 __________________________

Plaintiff and appellant Lorna Young appeals from a
judgment of dismissal following orders granting a demurrer
and a motion for summary adjudication in favor of
defendants and respondents Department of Public Social
Services (DPSS) and the County of Los Angeles (collectively
the County) in this action alleging retaliation for engaging in
protected activity. On appeal, Young contends: (1) the
complaint stated a cause of action for retaliation in violation
of the California Fair Employment and Housing Act (FEHA)
(Gov. Code, § 12900 et seq.) following Young’s complaints
about discrimination based on race, and (2) triable issues of
fact exist as to her cause of action for retaliation in violation
of Labor Code section 1102.5, following her whistleblower
activities. We hold that the allegations of the complaint, in
conjunction with the evidence judicially noticed, state a
cause of action for retaliation in violation of the FEHA. In
addition, triable issues of fact exist as to whether the County
retaliated against Young in violation of Labor Code section
1102.5. Therefore, we reverse.

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 FACTS AND PROCEDURAL BACKGROUND1

Allegations of the Complaint

Young filed the operative third amended complaint
against the County on September 20, 2016, alleging several
causes of action, including retaliation in violation of FEHA
and retaliation in violation of Labor Code section 1102.5, as
follows.
DPSS hired Young in 1995 as a clerk. In 2006, Young
became a union shop steward for SEIU Local 721. DPSS
promoted Young to Eligibility Worker III in 2007. She
worked at the DPSS facility on South Vermont Avenue (the
Vermont facility), which was two miles from her home.
Brian Nollner, who was the district director at the
Vermont facility, divided DPSS employees at the Vermont
facility into a group of Latinx employees serving Latinx
customers and a group of Black employees serving Black
customers. DPSS employees, including Young, complained
to Nollner that his division of the employees constituted race
discrimination, fomented hostility in the workplace, and
unfairly distributed more work to Black employees. On
March 15, 2012, Nollner agreed the work had been
segregated and said he intended to reorganize the
distribution of work. However, Irene Huizar replaced

1 The County’s request for judicial notice of pleadings
filed in the trial court proceedings filed with this court on
March 17, 2020, is granted.

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Nollner as the district director for the Vermont facility on
April 16, 2012. In a labor management meeting in May
2012, Huizar stated that she had decided to keep the
segregated work assignments.
Between May 2012 and August 2013, Young reported
the racially segregated work assignments to the Los Angeles
County Board of Supervisors (the Board), Senator Dianne
Feinstein, the director of DPSS, and the International
President of SEIU Local 721. She raised the issue in
monthly steward council meetings as well.
On September 17, 2013, Young conducted a “Bad Boss
Campaign” for SEIU Local 721 in order for DPSS employees
and union members to present Huizar with a list of
violations of workers’ rights. Huizar refused to allow the
group to present the petition to her. Huizar attempted to
keep her door closed and was struck by a door handle.
Huizar reported Young as the person who injured her,
although it was not Young.
The following day, Young met with Division Chief
Stephanie Dillard and the director of a different facility
named Carol Maston. Young received a verbal suspension
without pay for 30 days. While she was at home during the
suspension, DPSS told her that she would be returning to
work at a different location.
Young contacted the union for assistance and was
ultimately directed to report for work at a DPSS facility on
South Central Avenue (the Central facility). When she went
to the Vermont facility to collect her personal effects, she

4
was escorted by security, sheriff’s deputies, and DPSS
administrative deputies. She reported to the Central facility
on October 24, 2013.
Her first, second, and third level supervisors at the
Central facility were Latinx. Her supervisors were aware of
her complaints about segregated work assignments at the
Vermont facility. Because of this, her supervisors treated
Young differently from similarly situated employees, made it
difficult for her to perform her job, and created an
inhospitable work environment.
On the day that she arrived, she was provided with a
work station directly beneath air conditioning vents. Young
complained about the cold and the seat provided. Although
there were other work stations available, her supervisors
refused to relocate her. Other DPSS employees had
workstations to facilitate their job functions, but Young’s
workstation was never set up to facilitate her job function.
She was not provided the security clearance within the
computer system that she needed to perform the job that she
had been assigned.
Following her return to work in October 2013, she
asked to take leave under the Family and Medical Leave Act
of 1993 (FMLA) (29 U.S.C. § 2601 et seq.), because her father
was gravely ill. DPSS concluded that she did not have the
time accumulated to be eligible for leave under the FMLA
and denied her request for leave. Young filed a complaint
with the United States Equal Employment Opportunity
Commission (EEOC) in October 2013. Her father died on

5
November 5, 2013. Young also developed bronchitis in
November 2013.
Young’s supervisor blamed her for a four-month file
backlog, although Young had recently started and did not
have the computer clearance necessary for her job function.
In March 2014, Young’s doctor issued a note with a work
restriction limiting her to a three-day work week as a result
of work-related stress. Despite being aware of her work-
related stress, DPSS continued to marginalize her, failed to
provide her with appropriate responsibilities, and refused to
move her work location from under the air conditioning vent.
Young felt she was minimized, targeted for extra scrutiny
that other employees did not receive, and subjected to excess
discipline to which other employees were not subjected. As a
result, she felt she could not stay in such an environment
and was constructively terminated on August 29, 2014.
On February 27, 2015, Young filed a second complaint
with the EEOC, as well as a complaint with the Department
of Fair Employment and Housing (DFEH). Both entities
issued right-to-sue letters. On August 14, 2015, Young’s
attorney requested Young’s personnel records from DPSS.
On August 17, 2015, Young requested reinstatement. On
September 25, 2015, DPSS denied her reinstatement
request.
On September 30, 2015, Young received a text message
from a DPSS employee who was in a meeting with Huizar.
The employee reported that Huizar had cautioned employees
to be careful with union activities or “you may find yourself

6
not able to promote or without a job.” The employee
understood Huizar to be referring to Young. DPSS produced
Young’s personnel documents on October 2, 2015, after the
statutory deadline.
On February 11, 2016, Young filed the instant lawsuit
against DPSS and the County. She filed amended
complaints in February and April, 2016. On September 20,
2016, Young filed a third complaint with the DFEH,
obtained a right to sue notice, and exhausted her
administrative remedies. The following day, she filed the
operative third amended complaint.
In connection with the cause of action for retaliation in
violation of the FEHA, Young further alleged that she
complained of racial discrimination in the workplace,
engaged in equal employment opportunity (EEO) activity,
and requested family medical leave to care for her father
under the California Family Rights Act (Gov. Code,
§ 12945.2). Following her complaint and the EEO activity,
DPSS took adverse employment actions against her,
including assigning her to a job location farther away, failing
to provide a security clearance for her to perform her job,
requiring her to sit under an air conditioning vent, denying
leave to care for her father, constructively terminating her,
failing to reinstate her, and failing to timely produce her
personnel file. Her complaints of racial discrimination, EEO
activity, and her request for family medical leave were
substantial motivating reasons for the decisions of DPSS to

7
engage in the adverse employment actions, and the conduct
of DPSS was a substantial factor in causing Young harm.
With respect to the cause of action for violation of
Labor Code section 1102.5, she further alleged that she had
disclosed information regarding racial discrimination to a
government agency and to a person with authority over her,
who had the power to investigate and correct the violation,
by complaining to her immediate superiors and by filing an
EEOC complaint regarding the racial discrimination. Her
disclosure of this information was a substantial motivating
reason for DPSS and the County to take adverse
employment actions against her, by which she was harmed.
As a direct result, Young suffered economic and non-
economic damages, including a loss of earnings and other
employment benefits and job opportunities.

Demurrer to Third Amended Complaint

On October 20, 2016, the County filed a demurrer to
several of the causes of action, including the cause of action
for retaliation in violation of the FEHA. The County argued
that the retaliation allegations stemmed from her
complaints about discrimination at the Vermont facility,
which she had left more than a year prior to filing charges
with the EEOC and the DFEH. The adverse employment
actions at the Vermont facility were equally stale.
Therefore, her claims based on actions at the Vermont
facility were time barred. There was no nexus between the

8
protected activity at the Vermont facility and purported
adverse employment actions at the Central facility, and her
claims based on post-resignation conduct failed for lack of
certainty.
The County requested that the trial court take judicial
notice of the complaint that Young filed with the DFEH on
February 27, 2015. Young checked boxes for discrimination
based on race and retaliation. In the box for the particulars
of the charge, Young stated in pertinent part: “On October
1, 2014, I was subjected to a difference in treatment which
included but was not limited to: being involuntarily moved
to another district. On or about February 1, 2015, the
County failed to replace time taken as a result of FMLA. [¶]
No reasons were given . . . for the difference in treatment.
[¶] I believe that I have been discriminated against due to
my race, Black[,] and in retaliation for opposing an unlawful
activity, which is in violation of Title VII of the Civil Rights
Act of 1964, as amended.” It is clear that Young misstated
the dates of the adverse employment actions listed, because
the County moved her to a different district in October 2013,
and the failure to replace time taken for leave purposes
would have occurred prior to Young’s separation from
employment in 2014.
Young opposed the demurrer to the cause of action for
retaliation in violation of FEHA on the ground that the
allegations were sufficient to state a cause of action, namely
that the County engaged in adverse actions against her
which culminated in the failure to reinstate her employment

9
and produce personnel documents, and she timely exhausted
her administrative remedies. The County filed a reply
arguing that the February 2015 charge filed with DFEH was
untimely and could not be revived through the September
2016 charge.
A hearing was held on April 24, 2017. No reporter’s
transcript of the hearing has been made part of the record on
appeal. The trial court took judicial notice of the February
2015 DFEH charge and sustained the demurrer without
leave to amend. The court noted Young had not alleged any
discrimination based on race at the Central facility, so the
last date of discrimination was in October 2013 and her
DFEH charge filed more than a year later was untimely.
The trial court concluded any retaliation claim that rested
on the discrimination claim was untimely as to pre-
termination allegations. Young’s allegations about actions
taken post-termination were not sufficient to revive her
discrimination, harassment, or retaliation claims. In
addition, the County’s failure to provide personnel
information might support a Labor Code violation, but would
not support or reinstate claims under the FEHA.

Motion for Summary Adjudication and Supporting
Evidence

On June 15, 2018, the County filed a motion for
summary adjudication of several causes of action, including
the cause of action for retaliation against a whistleblower in

10
violation of Labor Code section 1102.5. The County argued
that there was no causal connection between Young’s
complaints about segregated work units in 2012 and the
denial of her request for reinstatement in August 2015,
because there was no evidence that the disclosure of the
information was a contributing factor in the adverse
employment action. There was no temporal proximity
between the whistleblowing activities and the denial of
reinstatement, and no evidence of retaliatory animus. In
addition, the County had a plausible non-retaliatory reason
for denial of the reinstatement request based on Young’s
disciplinary history.
The County submitted a letter dated March 11, 2015,
from an attorney representing Young, presenting a claim
pursuant to the Government Claims Act. The claim was
made against the County and several individual employees.
The date of the occurrence giving rise to the claim was stated
as September 17, 2013, to the present. The general
description of the injury was false accusation, intentional
infliction of emotional distress, violations of FEHA and the
Civil Rights Act, and conspiracy to commit intentional torts.
The attorney requested that the County produce
Young’s personnel records within 21 days. He summarized
the facts of Young’s claim as a false accusation by Huizar on
September 17, 2013, followed by suspensions and a year of
harassment, retaliation and hostile work environment,
which led to Young’s constructive termination on August 29,
2014. The attorney requested immediate reinstatement with

11
back pay in an environment free of harassment, retaliation,
and hostility, and stated that Young was revoking her
previous resignation.
The County submitted the declaration of the human
resources employee responsible for responding to the request
for Young’s personnel records. The employee alerted
Young’s attorney when the files were ready for pick up on
April 9, 2015, and she believes the attorney picked up the
files on April 16, 2015, when he left a business card. In
August 2015, the County received a second request for
Young’s personnel file from a different attorney. Although
the County was not obligated under the Labor Code to
produce a second copy, the County provided a duplicate copy
as a courtesy on October 2, 2015.
The County submitted the declaration of June Spizer,
who is a third-level administrative services manager in the
human resources department for DPSS. She explained that
Lucia Chavez, who is a first-level manager in human
resources, initiated the background check for Young’s
reinstatement request by preparing a “two-way lettergram”
that was circulated to other departments. Chavez has no
decision making authority. Patricia Bradley is a second-
level manager in human resources who reports to Spizer.
Spizer makes the final decision on requests for
reinstatement, but typically follows the recommendation
that is made based on the background check. The
recommendation made after Young’s background check was
to reject the request, and the explanation provided was

12
“Candidate prior work history not suitable to hire at DPSS.”
Spizer followed the recommendation and denied the
reinstatement request. She directed Bradley to notify
Young. Spizer has never met Young and is not familiar with
anything related to her employment with the County. She
has never personally reviewed the contents of Young’s
personnel file.
The County also submitted the declaration of Reyna
Castaneda. At the time that Young applied for
reinstatement, Castaneda was a management analyst in the
discipline, policy, litigation, and LiveScan section of DPSS.
She was responsible for conducting background checks for
new hires, transfers, reinstatements, and promotions at
DPSS. Castaneda conducted the background investigation
for Young’s reinstatement request. She was not previously
aware of Young and was not familiar with Young’s
employment history before being asked to conduct the
background investigation. Castaneda’s practice was to
prepare a summary and make a recommendation for review
by her supervisor, Arnetta Counts. If Counts agreed with
the recommendation, she would sign the summary and
return it to Castaneda.
Castaneda found Young had a substantiated case
against her from Internal Affairs for organizing a “Bad Boss
Campaign” against the director of the Vermont facility,
which had resulted in a confirmation of conference being
issued on May 15, 2014. Young was the “Involved Party” in
three cases before the County Equity Oversight Panel

13
(CEOP), one of which was substantiated on January 22,
2015, after Young had resigned her employment. She
received a five-day suspension on January 5, 2011, for failing
to follow established rules. She had unauthorized absences
without pay (UAWOP) totaling 17 hours between September
1, 2012, and August 29, 2014. Each of these incidents alone
would have been enough to recommend denial of
reinstatement.
The County submitted the declaration of Counts as
well. Counts became familiar with Young in September
2013, when Young was involved in the union-sponsored
campaign involving Young’s supervisor, Huizar. Counts was
responsible for assessing the scope of Young’s involvement in
the campaign and determining the appropriate discipline. In
conjunction with Young’s suspension after the campaign and
her Skelly hearing related to the suspension, Counts
reviewed affidavits and other information regarding the
conduct of all the County and non-County people involved.
As a result of her investigation, Counts determined that
Young was a participant in the campaign, not an instigator.
Counts recommended that Young be reassigned to a
different facility, issued a non-disciplinary confirmation of
conference, and receive full pay for the period of time that
she was suspended pending investigation.
With respect to the reinstatement request, Counts did
not have any specific memory of reviewing the results of the
background check. She does not disagree with Castaneda’s
recommendation, however, to deny reinstatement based on

14
the results of the background investigation. Counts
recommended the corrective action simply as a function of
her job; she has no personal animosity toward Young and no
reason to interfere with Young’s attempts to seek
reinstatement with the County.

Opposition to Motion for Summary Adjudication and
Supporting Evidence

Young opposed the motion for summary adjudication.
She argued that the employees who denied her
reinstatement request relied on retaliatory disciplinary acts
for their decision, which was still retaliation, and they acted
as the “cat’s paw” in carrying out the County’s retaliatory
intent. The protected activities included reporting to her
supervisors that DPSS had unlawfully segregated working
groups by race and reporting her complaints to the Board
when the County refused to hear her concerns. As a union
steward, she engaged in union activities, and when the
County suspended her without a Skelly hearing, she asked
her union to assert an unfair labor practice against the
County. She listed all of the adverse employment actions
taken against her and the causal connection to her protected
activities. She argued that the County had not met its
burden to show a legitimate, non-retaliatory reason for the
adverse employment actions taken against her, particularly
because the County had addressed only the request for
reinstatement. Also, the decision maker on her request for

15
reinstatement was merely the tool of other personnel who
had discriminatory animus.

A. Events in 2011 and 2012

Young submitted her declaration and excerpts of her
deposition testimony to establish the following facts in
opposition to the motion. In January 2011, Young went to a
movie after a doctor’s appointment and returned to work
late. She was considered to have taken unauthorized leave
without pay and suspended for five days.
Nollner created a unit of workers who were Latinx, not
a unit of workers who spoke Spanish. The Latinx unit
included both Spanish and non-Spanish speakers. Shortly
after Huizar became the district director for the Vermont
facility in April 2012, Huizar met with Young, another union
shop steward named Deborah Polee, and four other
employees. Huizar advised them that she had spoken with
Nollner about desegregating the working groups and had
met with the Spanish-speaking unit separately without
union representation. She decided not to desegregate the
district.
Although union bylaws and the memorandum of
understanding required monthly labor management
meetings, Huizar frequently said she could not attend and
caused meetings to be delayed or cancelled. Office
segregation was a continuing point of discussion at the union
meetings.

16
 Young submitted a July 2012 transcript that showed
she addressed the Board to complain of workplace bullying
and other issues. In August 2012, Young, Polee, and a third
employee attended a Board meeting to complain about
segregation in the Vermont facility. As they waited to speak,
DPSS Director Sheryl Spiller approached and asked them to
speak with her subordinates Phil Ansel and Anjetta Venters-
Bowles instead, to give them an opportunity to address the
issue. If the employees were not satisfied, Spiller said they
should speak to her and she would handle their concerns
directly. Venters-Bowles spoke with the trio at length in
September 2012 and said she would look into the matter.
Young provided updates to Spiller and DPSS Division Chief
Stephanie Dillard through email messages that included the
union agenda, union meeting dates, and the issue of the
segregated work units.

B. Events in September and October 2013

Young estimated approximately 30 people walked to
Huizar’s office on September 17, 2013, including four union
representatives from outside the Vermont facility. The
rights that Young and other employees asserted to Huizar
included the ability to exercise their First Amendment rights
without interference and to participate in union activity
without retaliation or intimidation. Another right listed was
not to undergo any abusive treatment by management,

17
which meant not to illegally take away time from employees
and not to illegally suspend employees.
Young submitted several email messages in support of
her opposition as well. On the afternoon of September 17,
2013, at 2:55 p.m., an employee relations representative
notified Cathy O’Brien, who was the director of human
resources, as follows: “Received a phone call from Southwest
Family that Gilda Valdez, Michael Green and Yadira Villa of
SEIU Local 721 were attempting to service Irene Huizar
with the Bill of Rights. I contact[ed] John Garrisi [in the
CEO’s office] for instruction. [¶] Per John: Irene was to
send her receptionist out and inform them that if they wish
to service their Bill of Rights to go to Employee Relations
which is located in Norwalk and service the document there.
Spoke with Irene and she was fine with the instruction given
to her. She would send her secretary to see them.”
At 3:35 p.m., O’Brien responded and copied Dillard,
Venters-Bowles, Huizar, and another employee: “The CEO
directed SEIU to serve the Employee Relations staff. SEIU
asking us to just ‘take it’ is unacceptable and hostile. This
combative behavior toward our district office head is not
acceptable. I am copying CEO for options such as an unfair
and possibly CEOP since it applies to our employees who are
shop stewards and they are harassing the director by using
SEIU business agents.”
At 3:41 p.m., Huizar responded, “This is to inform you
that I am filing a police report for battery against Gilda.
Gilda Valdez came to my door and push[ed] it against me,

18
hitting me with the door. She stepped into my office and
proceeded to instruct [Young] to serve the Bill of Rights. [¶]
I am also requesting for [Young] to be moved immediately as
this behavior has escalated to a hostile work environment
and I feel threatened because her behavior has become
unpredictable.”
Young submitted her own deposition testimony for the
following facts. Young was verbally informed the next day
that she had been suspended for 30 days without pay, and
she received a letter of intent stating that she struck Huizar.
The sole basis given to her for the suspension was the
allegation that she struck Huizar. After receiving the
suspension, she went to the union office to report what had
happened. Polee was with her, because Young was
hysterical. Young met with union representatives and the
union attorney. While she was there her phone rang. A
friend in the office said that all of the employees had been
called into a mandatory staff meeting with Dillard, Venters-
Bowles, and some human resource representatives, who
advised employees not to participate in any union activity,
otherwise they would end up like Lorna Young. Young
relayed the information to the people in the union office.
The union attorney called O’Brien on Young’s behalf.
O’Brien said the County was not going to let an employee get
away with assaulting a director, and that the whole activity
was illegal. The union attorney disagreed, citing case law to
support the activities.

19
 Young provided copies of the following email messages
as well. An email on September 18, 2013, from the union’s
attorney to O’Brien stated, “Steward Lorna Young received
the attached after a workplace action. First, this is a ULP,
as it is discipline for union activity. Second, the member was
given no notice of intent or a Skelly. I have never seen the
County so blatantly violate someone’s constitutional rights.”
He requested an explanation.
The following day on September 19, 2013, Dillard sent
an email to O’Brien and included Counts, Venters-Bowles,
and two other employees. Dillard requested a review for
disciplinary action for Young based on the events of
September 17, 2013. “Young, other Southwest Family
employees and SEIU Local 721 employees attempted to
serve a Bill of Rights to District Director, Irene Huizar.
During this event, there was an attempt to forcibly enter Ms.
Huizar’s office by SEIU representative Gilda Valdez and Ms.
Young. This attempted entry result[ed] in an injury to Ms.
Huizar’s arm when her office door was pushed against her.”
Dillard attached the security incident report (SIR), an
affidavit from a secretary at the Vermont facility, a photo of
the Bill of Rights, and a photo of Huizar’s arm taken on the
day of the incident. She noted that Huizar independently
filed a police report charging Valdez with assault. Dillard
issued a verbal suspension to Young on September 18, 2013.
Counts responded, “Good stuff! Proceed with
confirmation of Oral Suspension. You can also use this for
the discipline letter.”

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 O’Brien wrote to the union’s attorney the following day
on September 20, 2013, copying six individuals: “Ms. Young
was responsible for instigating an illegal job action which led
to the injury of a departmental employee. Ms. Young was
told that this activity was unauthorized and specifically
directed to ‘serve’ the Bill of Rights to DPSS Employee
Relations Office and not to Ms. Huizar, Office Manager at
her office. Ms. Young, along with SEIU professional staff
people stormed the manager’s office pushing the door open
resulting in bodily injury to the manager who was trying to
prevent them from entering her office. [¶] Najeeb, as you
know there is a zero tolerance for work place violence which
I am sure that you are supportive. It is unimaginable that
you would support or condone such violence. We are going to
treat this incident like any other incident of violence in the
workplace and we will make no exception to this policy for
Ms. Young or any of the other participants. A police report,
a security incident report and a CEOP claim were filed. [¶]
We can assure you that a full and complete investigation will
be conducted including an interview with Ms. Young during
the next 30 days to determine the facts of the situation. Ms.
Young was directed to only speak with our Employee
Relations staff during this time period. She should follow
this directive.”
On Wednesday, October 2, 2013, the union’s attorney
wrote, “Even the security incident report makes clear that
Ms. Young did not engage in any violence. Isn’t it time for
the Department to undo this illegal act—we have already

21
filed a ULP and a civil service appeal and have the Skelly
tomorrow (unconstitutionally being held after Ms. Young has
already been suspended without pay)?”
On October 3, 2013, Counts sent an email to O’Brien, “I
am proposing that after Young’s Skelly meeting, we rescind
our 18.01(a) suspension and restore her wages lost. This will
make the Union’s position to fight a moot point. [¶] Also,
the documents I have seen thus far, do not show that Young
was the instigator of the mob activity that occurred at
Irene’s office. What is stated in the affidavits and the SIR is
that the Union’s executive staff led, encouraged, and
directed Young to participate in serving Irene the Bill of
Rights via reciting the Bill’s verbiage while Union folk
pushed and held the door open. Irene has only asked that
Young be disciplined, but her secretary named about four
other office employees who were part of the mob. (I have
asked Irene to provide more statements from the others
involved. I also believe we need the statements from the
Union staff that were the catalyst to this unsafe activity.)
After we receive all other pertinent information, we can
consider what additional discipline and/or corrective action
must be taken to address the inappropriate behavior in the
workplace by all involved. [¶] Please consider my
suggestion and let me know how to proceed.”
O’Brien responded later that morning, “There is still
an investigation and still someone hurt that resulted from
violence in the work place. [T]o conduct a fair investigation,
we cannot have Ms[.] Young continuing to instigate MOB

22
activity in that office. [¶] Now, if SEIU presents
information that the transfer precludes any further mob
behavior, and shows SOME remorse for the harm they
caused, then that should be considered by the Skelly officer.
This Skelly is about safety and a fair investigation NOT a
trier of fact since that information will only be available via
an investigation that is not tempered with or influenced. [¶]
We are NOT changing our course.”
An employee named Elizabeth Garcia replied, “I
concur. What causes me concern is 1) the Union clearly
overstepped its’ bounds in presuming it could plan and
physically ‘mob’ management’s office, 2) those in the
planning and the physical should equally be held
accountable and, 3) there seems to be no remorse. [¶] I am
looking forward to what comes out of the Skelly.”
Young submitted her deposition testimony to establish
the following. On October 18, she was given a few hours to
collect all of her things, while sheriff’s deputies and security
personnel monitored. She had worked at the location for 15
years and had three desks. When she had to use the
bathroom while gathering her things, a sheriff’s deputy was
sent with her.

C. Events after Transfer to the Central Facility

Young’s first line supervisor at the Central facility was
Veronica Vargas. When Young began working at the
Central facility, Vargas said she was aware of the reason for

23
Young’s transfer, but she did not want to get involved.
Egberto De Leon was Young’s second line supervisor. He
commented, “No matter what happened over there, you’re
now here. So we are aware of what occurred, but now you’re
in another facility.” They did not discuss his meaning, but
Young considered his comment to be negative. Concepcion
Buzo, the administrative director of the Central facility, was
her third line supervisor. When Young started, Buzo made a
comment similar to De Leon’s that they knew why she had
transferred. Each made one comment when she started and
did not mention it again. Colin Neal was the director of the
Central facility.
Vargas, De Leon, and Buzo made it difficult for Young
to perform her work function by not having her work area
set up. Young was stripped of all her security clearance, as
if she just walked in the door as a new employee. Her email
was erased, and she could not make case corrections, reverse
payments, give credits, or make any of those type of
adjustments. Young’s computer was never set up with the
security clearance that she needed to do the level of work
that she had been assigned.
Young complained about a very cold vent that her work
station was under. She was told to get a blanket and wear a
coat. She had previously had surgery for carpal tunnel
syndrome. She asked for ergonomic equipment and provided
a prescription from her doctor, as she had done at the
Vermont facility, but it was never set up.

24
 She asked to take leave under the FMLA to care for
her father. Neal told her that she did not have enough time
accrued to be entitled to FMLA leave. Neal also notified her
that she had caused the unit to have a backlog. Young’s
performance review at the Central facility was not less than
satisfactory though.
A first line supervisor at the Central location warned
Young to be careful, because it had been brought to the
attention of staff that Young had been moved to Central
because she assaulted a director. Young believed she
followed the chain of command to report workplace bullying
and other items, but her complaints were ignored. Instead,
the lie that she assaulted a director and violated County
policy was created and circulated to silence her.
After Young was transferred, she sent email messages
to all concerned parties regarding retaliation,
discrimination, and disparate treatment, including raising
the complaint about her clearance. As a result of her email
messages, Young met with Ansel in January or February of
2014 to discuss her suspension on September 17, 2013, and
the false accusation that she had assaulted the director.
Young submitted an email that she wrote on May 7,
2014, to several people, including Buzo, Neal, Dillard,
Spiller, and a union representative, with the subject line
“Continued Unjust Treatment Due to 30day Suspension.”
She stated that the County’s unjust treatment had affected
every aspect of her life, from her finances to her physical
health to her county career. The administrative deputy and

25
director met with her that morning about her ability to be
approved for leave under the FMLA. “The director
previously informed me that I had never been approved for
FLMA. I provided a printout obtained through Ecaps clearly
showing I was approved for FMLA in 2012. They then
informed me that the problem is the 30day suspension
(which by the way was partially rescinded) is not being
counted as time worked making me ineligible to FMLA.
This is totally unfair given the fact that 1) the 30days
without pay portion [of] the suspension was rescinded and 2)
I have not been made whole and am now working under
undue stress and in a hardship as [a] result of this travesty.
I have contacted SEIU and informed this administration
that I would be in contact with any and all parties that
would once and for all fix this and make me truly whole. [¶]
. . . [¶] . . . It is my hope that all parties concerned will
come together and rectify this injustice once and for all. By
clearing my name, restoring my time, restoring all benefits,
restoring my ability to promote and returning me to the
office that I worked at before September [17,] 2013.”
In May 2014, Neal presented Young with a
“confirmation of conference” based on the events that took
place on September 17, 2013, at the Vermont facility. Young
considered it excessive discipline to be required to report
directly to the director, rather than the supervisor or deputy.
She also believed it was excessive discipline to be written up
at the Central location in May 2014 for an incident that

26
occurred at the Vermont location the previous year and had
nothing to do with the Central location.
Young submitted an email that she sent on Friday,
May 23, 2014, to several individuals, including Spiller, Neal,
Buzo, Dillard and a union representative, as follows: “I just
received the attached [at 9:00 a.m.] from the Director with
the Admin. Deputy present here at South Central. I am
leaving to go to Kaiser. [M]y blood pressure is clearly up. I
will not accept any form of write up/warning regarding the
event that occurred 09/17/2013 at [the Vermont facility]. I
[have] already been wrongfully subject to a 30day
Suspension Without Pay (administered illegally) and forced
to come to South Central creating a hardship on me and my
family. . . . How many times does the County of Los Angeles
think that [they can] unjustly punish me for something that
I did not do and expect me to take it? I have been in hell for
8 months and it is time for it to stop. [¶] I want an apology
for this and I want all material related to it removed from
ALL my files. Every action from here on in must be
documented. [T]here will be no backdoor deals made on my
behalf regarding my life and career. If the County of Los
Angeles and SEIU721 will not (OR) cannot resolve this I will
take [it] as far as I have to clear my name and make this
right. [¶] I have requested to meet with the Director, Sheryl
Spiller because . . . all other parties have not been able to
amicably resolve this very important matter.”
Three months later, Young resigned. On September 5,
2014, O’Brien sent an email to another human resources

27
employee asking if Young had resigned. The employee
responded, “She left on August 30th for ‘working conditions.’
The print-outs are on your desk.” O’Brien forwarded the
email to Dillard, Venter-Bowles, Spiller and Garcia, noting,
“I thought you would find this interesting.” Spiller
responded, “Are you saying that she resigned? Are we
looking for a lawsuit to follow???” O’Brien replied, “Yes, she
resigned and completed the exit form stating her reason was
for, ‘poor working conditions.’ [¶] A wrongful termination or
an FLSA claim may be forthcoming. She has two grievances
pending at the 3rd level that were filed in May 2014: [¶] 1–
Confirmation of counseling—to be removed; and [¶] 2–
FMLA denial and a suspension. [¶] Also, an employee has
restoration rights up to one year based on management
discretion. Do you want a ‘top of file’ referral on this?”
Spiller responded, “Of course. I’m sure that a ‘top of file’
would be your recommendation, correct?” O’Brien replied,
“You got it!”

D. Additional Evidence

Young submitted the deposition testimony of Counts as
to the following facts. An employee who has left employment
with the County may request to be reinstated within the
first two years of separation. Reinstatement in those cases
goes through the same process as a transfer or promotion
candidate, which involves a background clearance. Young
was eligible to apply for reinstatement. She was not

28
reinstated because she had a five-day suspension for
attendance issues in 2011, she had a conference on file for a
bad boss campaign in which she was an active participant,
she had unauthorized absences on three occasions between
August 2013 and December 2013, and there was a
substantiated investigation by CEOP that had not been
assessed because Young had already resigned from service.
Counts did not know the substance of the investigation or
whether Young participated at all.
Counts stated that the County determined Young was
not the instigator of the September 2013 incident. The
primary instigators were union staff members, who the
County had no jurisdiction to discipline. Young was repaid
the money taken during the suspension. Young was issued a
conference memo on the ground that she should have had
better judgment to see that what had started out as a union
activity became something much more. The conference
memo was one of the documents that ended up being
reviewed in her request for reinstatement.
No other County employees were suspended for
participating in the incident. The union staff was the
driving force and Young participated. The County had
authority to discipline any employees that they knew to be
actively participating. Young was an active participant,
because she held the bill of rights and yelled the contents at
Huizar, according to Huizar, who felt threatened and was
fearful. Counts did not recall the names of any of the other
employees who were referred to her other than the union

29
staff and Young. Later, she learned that there were more
than 10 people. Huizar was the reporting party, and her
statement was taken. Counts is not aware that anyone
interviewed Young or took her statement before she was
given the oral suspension. Counts stated that the correction
action for Young was that she was issued a confirmation of
conference and was moved to a new office.
When Counts sent an email to O’Brien about the
representative who would attend the Skelly hearing, O’Brien
responded, “Good. Thanks. She needs to be prepared for
trouble.”
Young submitted Dillard’s deposition testimony as
well. Because Huizar was injured and Young was an
employee involved in the incident, Dillard, O’Brien, and
Venters-Bowles determined that Young could not return to
the Vermont facility.
Young submitted Huizar’s deposition testimony. After
the incident on September 17, 2013, Huizar handwrote an
affidavit describing the incident at Dillard’s request. She
listed the individuals from the union who had come to the
office without authorization, as well as Young and several
other individuals who came into the administration area,
approached her office, demanding for her to let them in and
demanding to meet with her. She typed a second affidavit
the next day, which she turned in to document her side of
the events. Huizar made a police report on the day of the
incident against Valdez, stating that she came into the
workplace and pushed Huizar with the door, injuring her

30
arm. Huizar believed there were approximately 20
employees involved in the incident.
Young submitted the deposition of Spiller. She recalled
meeting Young, Polee, and another employee at a Board
meeting in August 2012. When O’Brien informed her that
Young had resigned, they agreed to put a “top of file” on
Young’s file. “Top of file” means placing information relative
to the employee’s work history at the top of their personnel
file so that if someone reviews the file, they will not miss it.
Young submitted Chavez’s deposition testimony as
well. She explained that Counts reviews the
recommendation from the processing unit and Spizer makes
the final determination based on the recommendation from
Counts. Chavez compiled data produced to Young about
other former employees whose requests for reinstatement
had been denied. The reasons for denial were listed for each
employee. A few of the entries stated, “Top of File:
Employee was suspended” or “Top of file marked ‘Do not
Rehire.’” Asked to explain what “top of file” meant, Chavez
said Counts’s section would submit recommendations using
that language. When Chavez conducted a field check, she
requested the personnel folder. There would be a form on
the personnel file that sometimes stated, “do not rehire.”
There was no other information on the top of file form. If the
person was classified as “do not rehire,” it was usually a
person who had been discharged. Chavez has never seen “do
not rehire” on a file where the person had not been
discharged, but instead had simply resigned.

31
Reply and Trial Court Ruling

The County submitted a reply. The County argued
that the only actionable adverse employment action in
connection with the Labor Code section 1102.5 retaliation
claim was the failure to reinstate Young. The County had
legitimate, non-retaliatory reasons for the adverse actions
taken, which Young had not rebutted. The adverse actions
that were alleged after her transfer in October 2013 were not
sufficiently connected to her protected activity. She had not
shown a nexus between the unpleasant experiences in her
new work environment and her protected activity. There
was no admissible evidence that anything that happened in
her new department was due to her engaging in protected
activity in the form of complaining about a racially
segregated work assignment in her prior department.
Young had not even shown that the County intentionally
created or knowingly permitted working conditions that
were so intolerable at the time of Young’s resignation that a
reasonable person would have been compelled to resign. The
post-transfer actions such as being seated under an air
conditioning vent, having security clearance issues,
dissatisfaction with the equipment at her workstation, and
denial of FMLA leave were single, trivial or isolated acts
that, viewed together, did not rise to the level of meeting the
standard for constructive termination. Young could not
pursue a claim under Labor Code section 1102.5 based on
the alleged constructive termination, because the trial court

32
had already ruled that the post-transfer events were not
tethered to the protected activity.
The County submitted a document from Young’s
personnel file entitled “Top of File” with individual entries
summarizing her employment history, beginning with a
transfer in 1997. The most recent entry on the document
was a promotion in 2007. It did not list Young’s transfer in
2013 or her separation from employment in 2014.
A hearing was held on August 30, 2018. The trial court
took the matter under submission. On September 6, 2018,
the trial court granted the motion for summary adjudication
as to all of the remaining causes of action. The trial court
entered judgment in favor of the County on October 29,
2018. Young filed a timely notice of appeal.

DISCUSSION

Retaliation in Violation of FEHA

Young contends that the complaint stated a cause of
action for retaliation in violation of the FEHA, including
exhaustion of her administrative remedies. We agree.

A. Statutory Scheme and Standard of Review

The FEHA makes it an unlawful employment practice
to discharge a person from employment or discriminate
against the person in the terms, conditions, or privileges of

33
employment, because of race. (Gov. Code, § 12940, subd.
(a).) The FEHA also makes it unlawful for an employer “to
discharge, expel, or otherwise discriminate against any
person because the person has opposed any practices
forbidden under this part or because the person has filed a
complaint, testified, or assisted in any proceeding under this
part.” (§ 12940, subd. (h).)
To establish a prima facie case of retaliation under the
FEHA, a plaintiff must show “(1) he or she engaged in a
‘protected activity,’ (2) the employer subjected the employee
to an adverse employment action, and (3) a causal link
existed between the protected activity and the employer’s
action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th
1028, 1042.)
“A demurrer tests the sufficiency of a plaintiff’s
complaint by raising questions of law. On appeal, we
exercise our independent judgment to determine whether
the complaint states a cause of action. [Citation.] A trial
court errs in sustaining a demurrer when the plaintiff has
stated a cause of action under any possible legal theory.
[Citation.] In conducting our review, we must accept as true
all properly pleaded material facts and facts that may be
inferred from these allegations, but we do not accept the
truth of contentions, deductions or conclusions of law.
[Citation.] We are not bound by the trial court’s stated
reasons and must affirm the judgment if any ground offered
in support of the demurrer was well taken.” (Acuna v. San

34
Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1411
(Acuna).)

B. Exhaustion of Remedies

The County contends Young failed to exhaust her
administrative remedies, because the adverse employment
actions occurred more than a year before Young filed her
2015 DFEH charge, and could not be revived by filing a new
charge in 2016. The County further contends that the 2016
DFEH charge was too uncertain to allege exhaustion of
administrative remedies. We conclude that Young alleged a
continuing violation with at least one occurrence during the
statutory time period covered by her 2015 DFEH charge,
which a reasonable investigation by the DFEH would have
revealed.
An employee must exhaust his or her administrative
remedies by filing a verified complaint with the DFEH and
obtaining a right-to-sue notice before filing a judicial action
under the FEHA. (Wills v. Superior Court (2011) 195
Cal.App.4th 143, 153 (Wills).) The DFEH complaint must be
filed within one year of the unlawful acts, set forth the name
of the person or entity that committed the unlawful practice
and the particulars of the alleged acts. (Gov. Code, § 12960,
subd. (c).) An “unlawful practice” may be a distinct act, such
as termination or failure to hire, or it may be a course of
conduct occurring over a period of time. (Brown v. City of
Sacramento (2019) 37 Cal.App.5th 587, 598–599 (Brown).)

35
 “The FEHA statute of limitations ordinarily bars
recovery for acts occurring more than one year before the
filing of the DFEH complaint. (Jumaane v. City of Los
Angeles (2015) 241 Cal.App.4th 1390, 1402.)” (Brown, supra,
37 Cal.App.5th at p. 599.) However, “the continuing
violations doctrine may toll the section 12960 accrual period
if the employer engaged in a series of continuing and related
FEHA violations and at least one of those violations occurred
within the one-year period. (Richards v. CH2M Hill, Inc.
(2001) 26 Cal.4th 798, 811–824 (Richards).)” (Acuna, supra,
217 Cal.App.4th at p. 1412.) “Under this doctrine, an
employer can be liable for conduct outside the limitations
period ‘if the employer’s unlawful actions are (1) sufficiently
similar in kind . . . [citation]; (2) have occurred with
reasonable frequency; (3) and have not acquired a degree of
permanence.’ ([Richards, supra, 26 Cal.4th at p. 823].)”
(Brown, supra, 37 Cal.App.5th at p. 599.)
When an employee is subject to a continuing course of
retaliatory actions under the FEHA, the limitations period
does not necessarily start to run when the employee first
believes his or her rights have been violated. (Richards,
supra, 26 Cal.4th at p. 824; Nazir v. United Airlines, Inc.
(2009) 178 Cal.App.4th 243, 270 (Nazir).) “[W]hen a
continuing pattern of wrongful conduct occurs partly in the
statutory period and partly outside the statutory period, the
limitations period begins to accrue once an employee is on
notice of the violation of his or her rights and on notice that
‘litigation, not informal conciliation, is the only alternative

36
for the vindication of his or her rights.’ ([Richards, supra,]
26 Cal.4th at p. 823.)” (Acuna, supra, 217 Cal.App.4th at
p. 1412.) Under the continuing violations doctrine, the
limitations periods begins to run when the course of conduct
ends, such as when the employer ceases the conduct or the
employee is separated from employment, or the employee is
on notice that further efforts to resolve the conduct will be
futile. (Richards, supra, 26 Cal.4th at p. 824; Nazir, supra,
178 Cal.App.4th at p. 270.) “The Supreme Court has
extended the continuing violation doctrine to retaliation
claims. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th
1028, 1059.)” (Nazir, supra, 178 Cal.App.4th at p. 270.)
The plaintiff must specify an act violating the FEHA in
the administrative charge in order to file a lawsuit based on
that act. (Martin v. Lockheed Missiles & Space Co. (1994) 29
Cal.App.4th 1718, 1724.) The scope of the civil complaint is
limited to the scope of the administrative charge, the
completed administrative investigation, or any investigation
that might reasonably have been expected to grow out of the
administrative charge. (Nazir, supra, 178 Cal.App.4th at
p. 266.) The exhaustion requirement is satisfied if FEHA
claims in the judicial complaint are ‘“like and reasonably
related to”’ those in the DFEH charge (Wills, supra, 195
Cal.App.4th at p. 154) or “likely to be uncovered in the
course of a DFEH investigation” (Okoli v. Lockheed
Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1617
(Okoli)).

37
 We construe the administrative charge liberally.
(Nazir, supra, 178 Cal.App.4th at pp. 266–267.) The
language of a DFEH complaint “‘“need not presage with
literary exactitude the judicial pleadings which may
follow.”’” (Id. at p. 267.) The charge is sufficient if it
apprises the administrative agency of the alleged acts in
general terms. (Ibid.) The purpose of the administrative
charge is to initiate the investigatory and conciliatory
procedures of the administrative agency, not to limit the
plaintiff’s access to the courts. (Saavedra v. Orange County
Consolidated Transportation Agency (1992) 11 Cal.App.4th
824, 827.)
In this case, the operative complaint alleged a cause of
action for retaliation in violation of the FEHA, including
continuing violations which tolled the statute of limitations
to file an administrative charge. At the County’s request,
the trial court took judicial notice of Young’s 2015
administrative charge, which had alleged retaliation for
opposing an unlawful activity, including, but not limited to,
involuntarily moving Young to another district and failing to
replace time taken for the purposes of FMLA. Young was
involuntarily transferred to the new district in October 2013,
more than one year prior to the date that she filed her 2015
administrative charge. But the limitations period did not
necessarily begin to run when she first believed her rights
had been violated.
The allegations of the complaint show the statute of
limitations was tolled by the continuing violations doctrine,

38
because Young was subjected to a series of continuing
violations that were sufficiently similar in kind, occurred
with reasonable frequency, and did not acquire a degree of
permanence until she felt forced to resign as a result of her
working conditions. The evidence provided by the County in
support of the motion for summary judgment, of which we
have taken judicial notice on appeal, shows the discipline
imposed for the September 17, 2013 incident included the
involuntary transfer to the Central facility in 2013 and a
confirmation of conference provided 10 months later in May
2014, which was within the one-year period of Young’s
administrative charge. Young alleged that in connection
with her transfer to the Central facility, the County revoked
the security clearance that she needed to perform her job
function and did not restore the clearance during the time
that she worked at the Central facility. The County
informed her new supervisors and co-workers at the Central
facility that she had been transferred because she assaulted
a director at the Vermont facility, which the County knew
was not true. The time withheld during the month that she
was suspended was not replaced, although the suspension
was revoked and despite repeated attempts to have the
accounting corrected while she was at the Central facility.
Three months after the confirmation of conference was
delivered to her at the Central facility, she felt her working
conditions had become so intolerable that she was compelled
to resign. Following her resignation she had certain
reinstatement rights, but management employees took

39
action to prevent her from being reinstated as part of their
retaliatory conduct. It is reasonable to conclude that a
DFEH investigation of the allegations in the 2015
administrative charge would lead to investigation of the
County’s subsequent retaliatory acts within the statute of
limitations. Young’s DFEH charge was sufficient to exhaust
administrative remedies as to her claim for retaliation.

Retaliation Against a Whistleblower in Violation of
Labor Code Section 1102.5

Young contends triable issues of fact exist as to her
cause of action for retaliation under Labor Code section
1102.5. We agree.

A. Statutory Scheme and Standard of Review

Labor Code section 1102.5, subdivision (b), prohibits an
employer from retaliating against an employee “for
disclosing information . . . to a government or law
enforcement agency . . . if the employee has reasonable cause
to believe that the information discloses a violation of state
or federal statute, or a violation of or noncompliance with a
local, state, or federal rule or regulation.” The purpose of the
statute is to “‘encourag[e] workplace whistle-blowers to
report unlawful acts without fearing retaliation.’ [Citation.]”
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th
260, 287.)

40
 “A retaliation claim may be proved in two different
ways.” (Mokler v. County of Orange (2007) 157 Cal.App.4th
121, 138 (Mokler).) “First, a plaintiff may prove retaliation
by circumstantial evidence. In these cases, the plaintiff is
required to first establish a prima facie case of retaliation.
Once established, the defendant must counter with evidence
of a legitimate, nonretaliatory explanation for its acts. If the
defendant meets this requirement, the plaintiff must then
show the explanation is merely a pretext for retaliation.
(Patten v. Grant Joint Union High School Dist. (2005) 134
Cal.App.4th 1378, 1384 (Patten); see also Akers v. County of
San Diego (2002) 95 Cal.App.4th 1441, 1453 [(Akers)].)”
(Mokler, supra, 157 Cal.App.4th at p. 138.)
“Second, retaliation may be proved by direct evidence.
‘Where a plaintiff offers direct evidence of discrimination
that is believed by the trier of fact, the defendant can avoid
liability only by proving the plaintiff would have been
subjected to the same employment decision without
reference to the unlawful factor.’ (Morgan v. Regents of
University of California (2000) 88 Cal.App.4th 52, 67–68
(Morgan).) Where direct evidence of retaliation is shown,
the burden shifting analysis imposed in circumstantial
evidence cases does not apply. (Id. at p. 68.)” (Mokler,
supra, 157 Cal.App.4th at p. 138.)

41
 B. Prima Facie Case

For the purposes of summary adjudication, the County
conceded that triable issues of fact exist as to whether Young
engaged in a protected activity. The County argued instead
that Young cannot establish a prima facie case of retaliation
because there is no evidence of a causal link between her
protected activity and the adverse employment actions
alleged. We disagree.
“To establish a prima facie case of retaliation ‘a
plaintiff must show (1) she engaged in a protected activity,
(2) her employer subjected her to an adverse employment
action, and (3) there is a causal link between the two.’
(Patten, supra, 134 Cal.App.4th at p. 1384.) An employee
engages in protected activity when she discloses to a
governmental agency ‘“reasonably based suspicions” of
illegal activity.’ (Green v. Ralee Engineering Co. (1998) 19
Cal.4th 66, 86–87.)” (Mokler, supra, 157 Cal.App.4th at
p. 138.)
The same definition of “adverse employment action”
applies to lawsuits brought under Labor Code section 1102.5,
subdivision (b), as applies in FEHA retaliation lawsuits.
(Patten, supra, 134 Cal.App.4th at p. 1387.) An adverse
employment action for purposes of retaliation under Labor
Code section 1102.5 requires that the adverse action
materially affect the terms and conditions of employment.
(Ibid.) “The ‘materiality’ test encompasses not only ultimate
employment decisions, ‘but also the entire spectrum of

42
employment actions that are reasonably likely to adversely
and materially affect an employee’s job performance or
opportunity for advancement in his or her career.’
[Citation.] Minor or relatively trivial adverse actions by
employers or fellow employees that, from an objective
perspective, are reasonably likely to do no more than anger
or upset an employee do not materially affect the terms or
conditions of employment. [Citation.] But the terms or
conditions of employment ‘must be interpreted liberally and
with a reasonable appreciation of the realities of the
workplace [to further the fundamental antidiscrimination
purposes of the FEHA].’ [Citation.]” (Ibid.)
Young’s evidence showed that she reported
discrimination on the basis of race to multiple different
government employees beginning in March 2012 and
continuing through September 17, 2013. She reported
violations of other legal rights as well. On September 17,
2013, Young participated in bringing complaints about these
legal violations to the attention of the director of the
Vermont facility. The County suspended her that same day,
without an interview to ascertain her side of the facts, and
transferred her employment to another facility. The County
disclosed to her new supervisors and co-workers that she
had been transferred because she assaulted a director at the
previous facility, which was untrue. The County frustrated
her ability to perform her job at the Central facility by
revoking the security clearance that she needed for her job
function and failing to respond to her requests for an

43
ergonomic work station to accommodate her disability. She
repeatedly requested correction of her leave account for
purposes of FMLA, which was not completed. Instead, the
director of the Central facility delivered a confirmation of
conference for the events of September 17, 2013, which
standing alone was sufficient disciplinary action to prevent
her from being reinstated. Within three months, Young felt
compelled to resign as a result of these working conditions.
There was temporal proximity between Young’s
whistleblowing activity and the retaliatory course of conduct
that occurred within less than a year and materially affected
the terms and conditions of her employment. Young
submitted evidence from which the trier of fact could
conclude that she established a prima facie case of
retaliation and the burden shifted to the County to provide
legitimate, non-retaliatory reasons for the adverse
employment actions taken against her.

C. Reasons Not Offered for Many Adverse
Employment Actions

The County failed to provide legitimate, non-
retaliatory reasons for most of the actions at issue. “Once an
employee establishes a prima facie case of retaliation, the
burden shifts to the employer ‘to offer a legitimate,
nondiscriminatory reason for the adverse employment
action.’ (Morgan, supra, 88 Cal.App.4th at p. 68.)” (Mokler,
supra, 157 Cal.App.4th at p. 140.)

44
 The County provided no evidence concerning the
decision to transfer Young to the Central facility or to not
restore Young’s leave time after her suspension was revoked.
There was no evidence as to why Young’s security clearance
was revoked. The County did not explain why Young
received a confirmation of conference ten months after the
incident that precipitated it. Therefore, the County did not
meet its burden with respect to most of the adverse
employment actions taken against Young.
The sole action that the County addressed was the
failure to reinstate Young. The County provided evidence
showing legitimate, non-retaliatory reasons that her request
for reinstatement was denied.

D. Pretext

Young submitted evidence of pretext to raise a triable
issue of fact on the issue of whether reinstatement was
denied in retaliation for her complaints of discrimination
and illegal activity.
“Once the employer meets its burden, the burden then
shifts back to the plaintiff to prove the employer’s proffered
reasons for termination are pretextual. (See Morgan, supra,
88 Cal.App.4th at p. 68.) ‘“[T]he plaintiff may establish
pretext ‘either directly by persuading the court that a
discriminatory reason more likely motivated the employer or
indirectly by showing that the employer’s proffered

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explanation is unworthy of credence.’”’ (Id. at p. 68.)”
(Mokler, supra, 157 Cal.App.4th at p. 140.)
In this case, Young presented evidence that between 20
and 30 employees participated in the September 17, 2013
incident, but she was the sole employee to be disciplined.
The County’s management, upon hearing that she had
resigned as a result of her working conditions, agreed to put
a note on her file. Viewing the evidence in the light most
favorable to Young, a trier of fact could infer from the tone
and context of the management email messages that a “top
of file” notation was an instruction not to rehire Young. In
fact, Young presented evidence that another union shop
steward who participated in many of the same events
resigned and was reinstated, although she had a greater
number of absences than Young and more significant
disciplinary history.
Young’s evidence raised a triable issue of fact on the
issue of pretext. The judgment must be reversed as to the
cause of action for retaliation in violation of Labor Code
section 1102.5.

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 DISPOSITION

The judgment is reversed. The trial court is directed to
enter a new and different order overruling the demurrer to
the cause of action for retaliation in violation of the FEHA
and sustaining the demurrer in all other respects. The trial
court is also directed to enter a new and different order
denying the motion for summary adjudication as to the cause
of action for retaliation in violation of Labor Code section
1102.5, and granting the motion in all other respects.
Appellant Lorna Young is awarded her costs on appeal.

MOOR, J.

We concur:

BAKER, Acting P. J.

KIM, J.

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