Melendrez v. All Kids Academy

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Claudia MELENDREZ, Case No.: 22-cv-1725-AGS-DDL 4 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S 5 v. MOTION TO DISMISS (ECF 4) 6 ALL KIDS ACADEMY, et al., 7 Defendants. [8] 9 Plaintiff sued her employer for discrimination, harassment, retaliation, and related 10 claims. The employer moves to dismiss. 11 BACKGROUND1 12 Since 2009, plaintiff Claudia Melendrez has worked as a “floater teacher” for 13 defendant All Kids Academy. (ECF 1-3, at 4.) For over a decade, All Kids was aware that 14 Melendrez has “partial hearing loss and difficulty hearing faint sounds.” (Id.) According 15 to Melendrez, this condition never affected her performance, and it only became an issue 16 after she reported misconduct by another teacher. (See id. at 4–5.) 17 Specifically, on February 17, 2022, Melendrez observed and promptly reported that 18 a primary teacher “put[] her foot on a child’s neck.” (ECF 1-3, at 4.) Due to this incident, 19 California’s Department of Social Services issued a “Type B citation” to the facility. (Id.) 20 Thereafter, Melendrez alleges that she was subjected to a series of “false reports,” constant 21 monitoring, and unfair job requirements. (See id. at 5.) 22 On March 11, for example, Human Resources Director Clark Carlson told 23 Melendrez “that she could not return to work without hearing aids.” (ECF 1-3, at 5.) When 24 she promptly got them, however, she was still barred from working. In fact, on March 18 [26] 27 1 For motion-to-dismiss purposes, this Court accepts “the factual allegations in the complaint as true” and construes them “in the light most favorable to the plaintiff.” [28] 1 the facility director initially sent her home, saying that Melendrez “needed a hearing test.” 2 (Id. at 6.) Also, HR Director Carlson requested a doctor’s note “explaining her hearing test 3 results” and required her to “use sick leave” for the time she was kept home. (Id.) 4 Later that day, Melendrez was allowed to return to meet with Executive Director 5 Yolanda Perez. (ECF 1-3, at 6.) Melendrez detailed her unfair treatment since reporting the 6 teacher who put a “foot on a child’s neck.” (Id.) Perez assured her that she would not be 7 charged sick days and would be paid for her forced stay at home as administrative leave. 8 (Id.) But Melendrez’s problems continued after this meeting, including being 9 “continuously observed” and forbidden from being “alone with the children.” (Id. at 6–7.) 10 A few weeks later, on April 4, an associate teacher admonished Melendrez for using 11 her cell phone while “minding children during nap time,” after Melendrez “glanced at her 12 phone” to see if she had any texts about her sister who was in the hospital. (ECF 1-3, at 7.) 13 Another supervisor told Melendrez to lock up her phone, while failing to ask a nearby 14 teacher who “was using her personal laptop and cell phone” to do the same. (Id.) 15 Then, on April 19, 2022, All Kids fired Melendrez “due to her use of a cell phone in 16 the classroom.” (ECF 1-3, at 7.) But six days later, All Kids’ “Board of Directors reversed 17 the decision, reinstating [Melendrez’s] employment.” (Id. at 8.) HR Director Carlson 18 nonetheless “issued her a warning about cell phone use and required her to sign it.” (Id.) 19 Her reinstatement didn’t last long. On June 10, Melendrez was watching children 20 during “snack time” when she stopped a child from pulling out cords attached to a screen. 21 (ECF 1-3, at 9.) The chastened child, who was known for frequent “tantrums,” “grabbed” 22 her arm and “lunged” at her. (Id.) Melendrez walked away to let him calm down, but the 23 child told the primary teacher that Melendrez “hit him.” (Id.) Although that teacher’s back 24 was turned during the incident, she did not ask Melendrez about it and instead reported it 25 to the center’s director. After interviewing everyone, the director told Melendrez that the 26 child said she “pushed” him and that the reporting teacher “corroborated that story.” (Id.) 27 Finally, on June 23, 2022, All Kids again discharged Melendrez, noting that she had 28 “pushed” and “yelled at” a child. (ECF 1-3, at 9.) 1 DISCUSSION 2 All Kids moves to dismiss the complaint for failing to state a claim. To survive such 3 a motion, a complaint must contain enough facts to “state a claim to relief that is plausible 4 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fed. R. Civ. P. 12(b)(6). 5 Plausibility requires more than mere “conclusions” or a “formulaic recitation” of elements; 6 it must be based on “factual allegations” that “raise a right to relief above the speculative 7 level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up). 8 A. Whistleblower Retaliation (Claim 1) 9 A whistleblower-retaliation claim under California Labor Code section 1102.5(b) 10 involves a two-step burden-shifting process. See Lawson v. PPG Architectural Finishes, 11 Inc., 503 P.3d 659, 660, 663 (Cal. 2022). All Kids attacks both steps: It argues that 12 Melendrez cannot establish a prima facie retaliation case and—even if she could—that it 13 had a good-faith reason to fire her. 14 1. Prima Facie Case 15 To establish a prima facie case, plaintiffs must show that (1) they “engaged in a 16 protected activity” (whistleblowing), (2) their employer subjected them to “an adverse 17 employment action,” and (3) “there is a causal link between the two.” Moreno v. 18 UtiliQuest, LLC, 29 F.4th 567, 575 (9th Cir. 2022). No one contests the first point—that 19 Melendrez engaged in protected whistleblowing when she reported possible child abuse. 20 See Cal. Lab. Code § 1102.5 (b) (shielding disclosures of any “violation of a state or federal 21 statute”); Cal. Penal Code § 273a (child-abuse statute). But the next two elements are in 22 dispute. 23 The crux of All Kids’ argument is that “the four-month time gap” between 24 Melendrez’s whistleblowing and termination cannot support an inference of “retaliatory 25 causation.” (ECF 4-1, at 4.) There are two flaws with this reasoning: All Kids incorrectly 26 assumes that Melendrez’s June 23, 2022 firing is the only relevant adverse employment 27 action here and that the only indication of retaliatory motive is the timing. [28] 1 In its analysis, All Kids presumably ignores Melendrez’s earlier April 19, 2022 2 discharge because she was reinstated within a week. A “termination” is “an adverse 3 employment action.” Wilson v. Cable News Network, Inc., 444 P.3d 706, 713 (Cal. 2019). 4 And it remains so, for purposes of retaliation, even “if the employee is later reinstated.” 5 See Alvarez v. Lifetouch Portrait Studios, Inc., Nos. B286910, B289910, 2020 WL 61989 , 6 at *15 (Cal. Ct. App. Jan. 6, 2020) (analyzing retaliation under the Fair Employment and 7 Housing Act); see also Fay v. Costco Wholesale Corp., No. EDCV 10-00834 DDP 8 (DTBx), 2012 WL 683176 , at *4 (C.D. Cal. Mar. 2, 2012) (noting that “the same standard 9 governs” the analysis of an “adverse employment action” for whistleblower retaliation 10 under Cal. Lab. Code § 1102.5 and FEHA retaliation); cf. Aichele v. Blue Elephant 11 Holdings, LLC, 292 F. Supp. 3d 1104 , 1111–12 (D. Or. 2017) (holding that a “termination 12 . . . rescinded less than 24 hours later” without “any economic loss” was still an “adverse 13 employment action[]” for retaliation under Title VII and Oregon law). So, Melendrez’s 14 discharges both qualify as adverse actions,2 and the first one clocked in only two months 15 after her whistleblowing. (See ECF 1-3, at 4 (February 17 report); id. at 7 (April 19 16 termination)). 17 The question then is whether this two-month gap and any other allegations establish 18 causation. For the required “causal link,” a plaintiff must prove that retaliation “was a 19 substantial or motivating factor” in the “adverse employment actions.” See Sherman v. 20 Pepperidge Farm, Inc., No. 8:22-cv-01781-JWH-ADS, 2023 WL 5207458 , at *7–8 (C.D. 21 Cal. Apr. 28, 2023). This may be shown circumstantially, such as by “closeness in time” 22 or “a pattern of conduct consistent with a retaliatory intent.” Hawkins v. City of L.A., [23] 252 Cal. Rptr. 3d 849 , 856 (Ct. App. 2019). [26] 2 As more adverse actions would not change the analysis, the Court need not decide 27 whether the disciplinary warning or any other acts count as adverse employment actions. See Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004) (“A [28] 1 Melendrez offers both types of circumstantial cues. The two-month span between 2 whistleblowing and the first termination offers some support for causation. Of course, if a 3 plaintiff’s prima facie case relies on “mere temporal proximity between an employer’s 4 knowledge of protected activity and an adverse employment action,” those events must be 5 “very close” in time. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268 , 273–74 (2001) (noting 6 cases that found “3-month” and “4-month” periods insufficient to establish causality). But 7 even a period of “three to eight months is easily within a time range that can support an 8 inference of retaliation,” in some circumstances. Flores v. City of Westminster, 873 F.3d 9 739, 750 (9th Cir. 2017); see also Hawkins, 252 Cal. Rptr. 3d at 856 (finding retaliatory 10 causation based solely on “proximity in time” when plaintiffs were fired between 6 and 11 16 months after their whistleblowing and one to two months after the end of the formal 12 investigation it prompted). 13 And Melendrez’s case goes well beyond suspicious timing. She alleges that her 14 child-abuse report had negative consequences for All Kids: it received a citation from the 15 Department of Social Services. (ECF 1-3, at 4.) Immediately afterwards, Melendrez claims 16 that she began suffering nearly daily indignities until her first firing—that is, constant and 17 unwarranted monitoring, false reports of misconduct, unfair discipline, attempts to wrongly 18 dock her sick leave, inappropriate queries and requirements regarding hearing aids, and 19 improper exclusions from work. (See generally id. at 5–7.) This pattern of conduct—over 20 a brief two-month period—makes out a prima facie case that her whistleblowing was a 21 motivating factor in her termination. 22 2. Employer’s Same-Decision Defense 23 Once a prima facie case is established, the burden shifts to the employer to 24 demonstrate a “same-decision defense.” Lawson, 503 P.3d at 663 . Specifically, it must 25 prove “by clear and convincing evidence that”—regardless of any whistleblowing—“it 26 would have taken the same action for legitimate, independent reasons.” Id. at 660 (cleaned 27 up); see also id. at 663 . All Kids’ sole argument in this regard is that it had reasonable 28 grounds to believe that Melendrez assaulted a child—and to fire her for this misconduct— 1 even if that belief was mistaken. (See ECF 4-1, at 4–6.) But that cannot explain the first 2 firing of Melendrez on April 19, 2022, because this alleged assault did not happen until 3 two months later, on June 10. (See ECF 1-3, at 8–9.) So, Melendrez’s whistleblower4 retaliation claim can go forward as to the April 19 firing. 5 As for the June 23 termination, the Court must decide if Melendrez has “plead[ed] 6 herself out of court.” See Weisbuch v. Cty. of L.A., 119 F.3d 778 , 783 n.1 (9th Cir. 1997). 7 In other words, the question is: Has Melendrez “pleaded facts” that sew up the same8 decision defense so securely that she “cannot prevail”? See id. No, she can still plausibly 9 succeed. Although the child-abuse report against Melendrez aids All Kids’ defense, that 10 defense must be proven to a clear-and-convincing standard, and Melendrez can undercut it 11 by demonstrating pretext. Specifically, in February 2022 Melendrez reported another 12 teacher for “putting her foot on a child’s neck,” but that teacher returned to work within a 13 week. (ECF 1-3, at 4–5.) By contrast, just four months later All Kids fired Melendrez 14 because she reportedly “pushed” and “yelled at” a child. (Id. at 9.) In the light most 15 favorable to Melendrez, this pretext showing saves her retaliation claim as to the June 23 16 firing. See Buhl v. Abbott Labs., 817 F. App’x 408 , 410–11 (9th Cir. 2020) (noting that 17 pretext may be shown by identifying “any similarly situated employee who was treated 18 more favorably”). 19 B. FEHA Discrimination (Claim 2) and Wrongful Termination (Claim 6) 20 For Melendrez’s claims of disability-related discrimination and wrongful 21 termination under California’s Fair Employment and Housing Act, the Court must apply 22 the McDonnell Douglas “three-step burden-shifting test.” See Alamillo v. BNSF Ry. Co., [23] 869 F.3d 916, 920 (9th Cir. 2017); see also McDonnell Douglas Corp. v. Green, 411 U.S. 24 792, 802–04 (1973); Cal. Gov’t Code § 12940(a) (FEHA discrimination and wrongful 25 termination). First, “plaintiff bears the burden of establishing a prima facie case of 26 discrimination [or wrongful termination] based upon physical disability.” See Alamillo, [27] 869 F.3d at 920 . Second, after a prima facie case is established, the burden “shifts to the 28 employer to offer a legitimate, nondiscriminatory reason for the adverse employment 1 action.” Id. If the employer does so, plaintiff must finally “offer evidence that the 2 employer’s stated reason is either false or pretextual, or evidence that the employer acted 3 with discriminatory animus, or evidence of each which would permit a reasonable trier of 4 fact to conclude the employer intentionally discriminated.” Id. 5 1. Prima Facie Case 6 For a prima facie case of FEHA disability discrimination, plaintiffs must show that 7 they: (1) “suffer[] from a disability,” (2) are “otherwise qualified” for the job, and (3) were 8 “subjected to adverse employment action because of [their] disability.”3 Alamillo, 869 F.3d 9 at 920 . An employer acts “because of” a disability “when the disability is a substantial 10 motivating reason for the employer’s decision to subject the employee to an adverse 11 employment action.” Id. All Kids challenges only the first and third elements. 12 First, All Kids disputes that Melendrez’s “partial” hearing loss and “difficulty 13 hearing faint sounds” qualifies as a disability under FEHA. (ECF 4-1, at 6–7.) All Kids 14 relies on Melendrez’s admission that her “hearing condition did not have any restriction or 15 limitations on her performance.” (Id.) As relevant here, FEHA defines a “physical 16 disability” as a disorder or condition that (1) affects “special sense organs” and (2) “[l]imits 17 a major life activity,” such as “working.” Preston v. City of Carlsbad, No. D072950, [18] 2019 WL 395738 , at *11 (Cal. Ct. App. Jan. 31, 2019) (quoting Cal. Gov’t Code 19 § 12926(m)(1)&(m)(1)(B)(iii)). Melendrez’s “hearing loss” does not meet this standard, as 20 she contends that it does not affect her performance and she never “request[ed] any 21 accommodation” of it. See Preston, 2019 WL 395738 , at *13 (analyzing FEHA hearing22 loss discrimination claim). 23 But that does not end the analysis. Another way to satisfy the physical disability 24 element is with a perceived disability. That is, plaintiff may show that she was “regarded [26] 27 3 For wrongful termination due to a disability, the first two elements are the same, but the third element is that plaintiffs: (3) were subjected “to discharge . . . from [28] 1 or treated by the employer” as having a “physical condition that makes achievement of a 2 major life activity difficult.” See Cal. Gov’t Code § 12926(m)(4). Although the complaint 3 does not expressly mention this alternative theory, Melendrez now argues that All Kids 4 treated her as though she had a disability and “perceived” that it affected her “ability to 5 perform her job functions.” (ECF 6, at 16.) The complaint offers some support for this 6 argument. Melendrez alleges that All Kids told her that “she could not return to work until 7 she purchased hearing aids.” (ECF 1-3, at 5.) And even after she did so, she was again 8 barred from work on the ground that she still “needed a hearing test.” (Id. at 6.) In the light 9 most favorable to Melendrez, All Kids believed her hearing condition made it “difficult” 10 to accomplish her job. So, she plausibly alleges a perceived disability under FEHA. 11 Yet All Kids protests that it never perceived Melendrez as disabled. At most, it 12 believed Melendrez had “a minor hearing impairment that could be excuse[d] by a doctor 13 or else neutralized with a small hearing aid device.” (ECF 7, at 7–8; see also ECF 1-3, 14 at 5–6.) For legal support, All Kids points to the ADA employment-discrimination case of 15 Tubens v. Police Department of City of New York, 48 F. Supp. 2d 412 (S.D.N.Y. 1999), in 16 which the defense also argued that it perceived plaintiff as physically “impaired,” but not 17 “disabled.” Id. at 417 . But Tubens was interpreting the meaning of “disability” in the 18 Americans with Disabilities Act, which requires that the disabling impairment 19 “substantially limit[]” a major life activity. Id. at 416 (citing 42 U.S.C. § 12102 ). By 20 contrast, a “physical disability under the FEHA does not require the federal test’s 21 substantial limitation of a major life activity.” Colmenares v. Braemar Country Club, Inc., [22] 63 P.3d 220, 226 (Cal. 2003). Thus, cases interpreting the ADA, like Tubens, are “not 23 persuasive where the statutory language of the FEHA differs markedly from the ADA.” 24 See Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 83 Cal. Rptr. 3d 190, 211 (Ct. App. 2008); 25 see also Bryan v. United Parcel Serv., Inc., 307 F. Supp. 2d 1108, 1112 (N.D. Cal. 2004) 26 (explaining that FEHA affords “greater protection for claims of disability than the federal 27 ADA” and holding that monocular plaintiffs were “disabled under FEHA,” though not 28 under the ADA). 1 Next, All Kids maintains that Melendrez falls short on the final element—a 2 disability-related adverse employment action. All Kids argues convincingly that being 3 “barred” from the classroom with full pay and being “constantly monitored” by an 4 employer do not rise to the level of an adverse employment action. (See ECF 7, at 8.) But 5 Melendrez also contends that her “perceived disability was a substantial motivating reason” 6 for her termination. (See ECF 6, at 16; see also ECF 1-3, at 11, 14.) And the complaint 7 includes several allegations in aid of this theory. Starting in mid-March 2022, Melendrez 8 was barred from work until she bought hearing aids and took a hearing test; told she needed 9 to obtain a doctor’s note “explaining her hearing test results”; informed that she would be 10 charged “sick leave” for these forced absences; and then, upon her return to school, was 11 “continuously observed” and never “left alone with the students.” (ECF 1-3, at 5–7.) All 12 Kids then fired and reinstated her in April 2022, and finally fired her permanently in 13 June 2022. (Id. at 7, 9.) Both terminations qualify as adverse employment actions, 14 regardless of reinstatement. See Muhammad v. United Airlines, Inc., No. CV 07-6474 CAS 15 (CWX), 2008 WL 11336667 , at *4 (C.D. Cal. Dec. 8, 2008) (holding that plaintiff’s 16 termination and reinstatement “with full back pay” could qualify as an “adverse 17 employment action” in a FEHA discrimination case); Dumas v. New United Motor Mfg. 18 Inc., No. C 05-4702 PJH, 2007 WL 1223806 , at *8 (N.D. Cal. Apr. 24, 2007) (“Defendant’s 19 reinstatement of plaintiff with back pay and seniority does not serve to eliminate the 20 termination as an adverse [employment] action” for FEHA discrimination.). 21 On the other hand, All Kids has “been aware of” Melendrez’s “hearing condition for 22 over ten years.” (ECF 1-3, at 4.) At first blush, this seems to undermine the allegation of 23 hearing-related discrimination (while bolstering the retaliation claim, plausibly suggesting 24 that the hearing-aid issue was a smokescreen). But Melendrez need not show that All Kids 25 writ large is hostile to the hearing-impaired; she must only prove that the alleged bad 26 actors—Perez and Carlson—are. (See ECF 6, at 21.) And it is unclear how long Perez and 27 Carlson have been employed there or how often they interacted with Melendrez previously. 28 In the light most favorable to Melendrez, the Court must presume that this was one of their 1 first opportunities to discriminate against her. Thus, the timing and sequence of these 2 events plausibly suggest that she was discharged due to disability-related animus. Her 3 FEHA discrimination and wrongful termination claims survive. 4 2. Shifted Burdens 5 Although the burden now shifts to All Kids to offer a legitimate reason for firing 6 Melendrez, the complaint itself sets forth an explanation. Her April 2022 termination was 7 “due to her use of [a] cell phone in the classroom” (ECF 1-3, at 7), and her June 2022 8 discharge arose after two people—a teacher and student—reported that Melendrez 9 physically “pushed” the child (id. at 9). The cell-phone-related rationale is the more 10 debatable reason, especially because the complaint does not mention any school rules 11 regarding cell phones. But the Court need not resolve that issue. 12 Even if All Kids succeeds in shifting the burden back to plaintiff to prove intentional 13 discrimination or pretext, other allegations in the complaint plausibly meet her final 14 burden. On the same occasion that Melendrez was admonished for using her phone in the 15 classroom, another teacher “was using her personal laptop and cell phone,” yet was never 16 reprimanded. (ECF 1-3, at 7.) As for the child-abuse rationale, as discussed earlier, there 17 are ample pretext allegations, given the relatively charitable treatment of the teacher 18 Melendrez accused of “putting her foot on a child’s neck.” (See ECF 1-3, at 4–5.) “A 19 plaintiff may raise a triable issue of pretext through comparative evidence that the employer 20 treated . . . similarly situated employees more favorably than the plaintiff.” Earl v. Nielsen 21 Media Rsch., Inc., 658 F.3d 1108, 1113 (9th Cir. 2011). 22 As a result, the Court denies the motion to dismiss the FEHA claims for 23 discrimination and wrongful termination based on a disability (counts 2 and 6). 24 C. FEHA Disability Harassment (Claim 3) 25 In claim 3, Melendrez charges All Kids with disability harassment under FEHA 26 based on a hostile work environment. In this context, “harassment” means “offensive 27 comments or other abusive conduct” that is “so objectively severe or pervasive as to create 28 a hostile or abusive working environment.” Doe v. Dep’t of Corr. & Rehab., [1] 255 Cal. Rptr. 3d 910 , 923 (Ct. App. 2019) (cleaned up). To establish a prima facie case of 2 such harassment, Melendrez must show that: “(1) she is a member of a protected class [due 3 to a physical or mental disability]; (2) she was subjected to unwelcome harassment; (3) the 4 harassment was based on her protected status; (4) the harassment unreasonably interfered 5 with her work performance by creating an intimidating, hostile, or offensive work 6 environment; and (5) defendants are liable for the harassment.” See Galvan v. Dameron 7 Hosp. Ass’n, 250 Cal. Rptr. 3d 16, 28 (Ct. App. 2019); see also Cal. Gov’t Code 8 § 12940(j). 9 Melendrez relies on the following to show All Kids’ harassment: “requiring Plaintiff 10 to wear hearing aids, have a hearing test conducted, and consistently monitoring her until 11 she completed a hearing test.” (ECF 6, at 17.) These are not the sort of “offensive 12 comments” or “abusive conduct” that support such a claim. Harassment consists 13 exclusively “of conduct outside the scope of necessary job performance,” such as “verbal 14 epithets,” “derogatory posters or cartoons,” “unwanted sexual advances,” and the like. 15 Janken v. GM Hughes Elecs., 53 Cal. Rptr. 2d 741, 745 (Ct. App. 1996). Melendrez’s 16 allegations, on the other hand, belong to the category of decisions that could conceivably 17 be “necessary to performance of a supervisor’s job.” Id. In other words, a manager may 18 lawfully require an employee to accept greater supervision or to undergo hearing testing, 19 in some circumstances. See Quinn v. City of L.A., 100 Cal. Rptr. 2d 914, 921 (Ct. App. 20 2000) (holding that police department’s “requirement that an applicant possess a certain 21 level of hearing appears eminently reasonable” and directing judgment against plaintiff 22 who failed a “sound localization test”). Of course, an employer might impose those same 23 job demands unfairly due to some prohibited animus, but that amounts to a claim of 24 “discrimination, not harassment.” See Janken, 53 Cal. Rptr. 2d at 746 . 25 Thus, Melendrez’s disability-harassment claim must be dismissed. 26 D. FEHA Retaliation (Claim 4) 27 All Kids raises similar arguments against the retaliation claim under FEHA (claim 4) 28 as for whistleblower retaliation (claim 1)—that is, it contends that Melendrez has not 1 pleaded a prima facie case and cannot overcome its good-faith defense. But the legal 2 analysis is somewhat different. Unlike whistleblower retaliation, FEHA retaliation claims 3 call for the “well-worn, but meaningfully different,” three-step McDonnell Douglas 4 burden-shifting framework. See Lawson, 503 P.3d at 660, 662 . 5 The elements of a prima facie case are the same for both FEHA and whistleblower 6 retaliation, but the relevant “protected activity” is different. Compare Yanowitz v. L’Oreal 7 USA, Inc., 116 P.3d 1123, 1130 (Cal. 2005) (FEHA retaliation under Cal. Gov’t Code 8 § 12940(h)) with Moreno, 29 F.4th at 575 (whistleblower retaliation under Cal. Lab. Code 9 § 1102.5(b)). Under FEHA, an employee may not be discharged or discriminated against 10 for opposing “any practices forbidden under” FEHA or for filing “a complaint” under 11 FEHA. Cal. Gov’t Code § 12940(h). 12 All Kids contends that Melendrez has not alleged that she engaged in any such 13 “protected activities.” (ECF 4-1, at 4 n.1.) Melendrez responds that her FEHA-protected 14 activity was complaining to the executive director about “the harassment based on her 15 hearing aids.” (See ECF 6, at 18.) An “employee’s formal or informal complaint to a 16 supervisor regarding unlawful discrimination . . . may constitute retaliation” under FEHA. 17 Dokes v. Safeway, Inc., No. 2:15–cv–01157–TLN–DB, 2018 WL 1518562 , at *10 18 (E.D. Cal. Mar. 28, 2018). So, Melendrez has pleaded a protected activity. In addition, she 19 has sufficiently alleged a causal link between that protected activity and an adverse 20 employment action: she complained to the executive director on March 18, 2022; was 21 constantly monitored for weeks thereafter; fired on April 19, 2022 (and later reinstated); 22 and fired for the last time on June 23, 2022. (ECF 1-3, at 6.) These facts make out a prima 23 facie case. 24 The burden now shifts to All Kids to offer legitimate, nonretaliatory reasons for 25 terminating Melendrez. The Court’s burden-shifting analysis here mirrors the discussion 26 for the FEHA discrimination claim. See supra section B.2. Once again, even if the Court 27 accepts All Kids’ good-faith explanations, Melendrez plausibly alleges that they are 28 pretextual. So, the FEHA retaliation claim remains. 1 E. FEHA Failure to Prevent Harassment and Retaliation (Claim 5) 2 In claim 5, Melendrez accuses All Kids of failing to prevent harassment and 3 retaliation, in violation of California Government Code section 12940(k). (ECF 1-3, 4 at 13–14.) All Kids’ lone argument against this cause of action is that a failure-to-prevent 5 claim cannot be based on a deficient underlying charge of harassment or retaliation. (See 6 ECF 4-1, at 8); see also Thompson v. City of Monrovia, 112 Cal. Rptr. 3d 377 , 393 7 (Ct. App. 2010) (holding that an “employee has no cause of action for a failure to 8 investigate unlawful harassment or retaliation, unless actionable misconduct occurred”). 9 The Court concurs with that legal principle, but it dictates only a partial dismissal here. The 10 harassment and failure-to-prevent-harassment claims perish together. See supra section C. 11 But Melendrez adequately pleaded retaliation, so she may pursue a claim for failing to 12 prevent retaliation. 13 F. Negligent Supervision (Claim 7) 14 All Kids moves to dismiss the negligent-supervision claim because Melendrez “fails 15 to identify which employees were a threat” and fails to allege “that employees under 16 supervision had a known past history of specific unlawful conduct.” (ECF 4-1, at 9; see 17 also ECF 1-3, at 15 (claim 7: specifically alleging negligent supervision of “unlawful 18 practices” and “unlawful conduct”).) To “establish negligent supervision, a plaintiff must 19 show that a person in a supervisorial position over the actor had prior knowledge of the 20 actor’s propensity to do the bad act.” Z.V. v. Cty. of Riverside, 189 Cal. Rptr. 3d 570 , 581 21 (Ct. App. 2015). Although Melendrez doesn’t specify anyone by name in the claim itself 22 (see ECF 1-3, at 15), she now identifies the relevant supervisor as “Defendant’s board” and 23 the bad actors as “Executive Director Perez” and “Human Resources Director Carlson” 24 (ECF 6, at 21). 25 Yet the complaint is devoid of facts linking these people to the relevant negligent26 supervision elements. (See ECF 1-3, at 15.) In her responsive papers, Melendrez argues 27 that All Kids’ board had prior knowledge of misconduct “because a cursory look at the 28 termination report revealed its unfounded, disparaging, and retaliatory nature.” (ECF 6, 1 21.) But these facts appear nowhere in the complaint. In fact, the complaint’s entire 2 || discussion of the board is two sentences: “Plaintiff appealed her termination which was 3 || presented to Defendant’s Board of Directors on Monday, April 25, 2022. The Defendant’s 4 ||Board of Directors reversed the decision, reinstating Plaintiff's employment.” (ECF 1-3, 5 || at 8.) The “termination report” is never mentioned. And there are no allegations whatsoever 6 || that the board knew or should have known that Perez or Carlson, specifically, were engaged 7 unlawful practices. 8 Melendrez failed to state a claim of negligent supervision, so claim 7 is dismissed. 9 ||G. Leave to Amend 10 Melendrez seeks leave to amend for any dismissed claims, and All Kids cursorily 11 ||}opposes that request. (See ECF 6, at 26; ECF 7, at 11.) Unless the defense shows that a 12 || “defective complaint” cannot “be cured,” a “plaintiff is ordinarily entitled to amend the 13 ||}complaint before the action is dismissed.” See Arimilli v. Rezendes, No. CV-21-0034514 || PHX-GMS, 2023 WL 2734456 , at *7 (D. Ariz. Mar. 31, 2023). All Kids has not shown 15 amendment would be futile or otherwise impermissible. So, Melendrez may amend. 16 CONCLUSION 17 All Kids’ motion to dismiss is GRANTED in part as follows: 18 1. Claim 3 (disability harassment) is DISMISSED. 19 2. Claim 5 (failure to prevent harassment and retaliation) is DISMISSED IN 20 PART. The failure-to-prevent-retaliation claim survives. The Court dismisses 54 only the cause of action for failure to prevent harassment. 3. Claim 7 (negligent supervision) is DISMISSED. 73 || The motion is otherwise DENIED. Melendrez has leave to amend any dismissed claims. 74 || By October 23, 2023, Melendrez must file any amended complaint. 75 Dated: September 25, 2023 [26] Hon. Andtew G. Schopler 27 United States District Judge