Wang v. City of Clear Lake

• Court: District Court, N.D. California
• Decided: March 2, 2020
• Docket: 3:19-cv-05370
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JANE WANG, Case No. 19-cv-05370-EMC

8 Plaintiff, ORDER DEFERRING IN PART; 9 v. GRANTING IN PART; AND DENYING IN PART DEFENDANT’S MOTION TO 10 CITY OF CLEAR LAKE, et al., DISMISS 11 Defendants. Docket No. 29

12 13 14 Plaintiff Jane Wang has filed suit against her former employer, the City of Clearlake, and 15 two of its employees, Greg Folsom (City Manager) and Doug Herron (Director of Public Works). 16 She asserts, for the most part, claims for employment discrimination based on sex and/or race. 17 Currently pending before the Court is the City’s motion to dismiss the operative first amended 18 complaint (“FAC”). 19 I. FACTUAL & PROCEDURAL BACKGROUND 20 In the FAC, Ms. Wang alleges as follows. 21 Ms. Wang is an Asian woman. She began to work for the City in September 2017. See 22 FAC ¶ 9. Although not entirely clear, it appears that she was hired to work as a City Engineer 23 and/or Deputy Director of Public Works. See FAC ¶¶ 12, 75. 24 Immediately upon her tenure, Mr. Herron – the Director of Public Works – began to ask 25 Ms. Wang out for drinks and/or food. See FAC ¶ 9. He also made comments about her body and 26 showed off his body to her. See FAC ¶ 9. In addition, he seems to have suggested that Mr. 27 Folsom (the City Manager) was also interested in her. See FAC ¶ 9. At one point, Ms. Wang 1 government car, “saying the type of car didn’t fit for a female like her to drive.” FAC ¶ 9. 2 It appears that, subsequently, Mr. Herron – along with Mr. Folsom – subjected her to other 3 conduct. For example: 4 • They did not allow her to order supplies “even though she had a supply budget to 5 use.” 6 • They did not invite her to work meetings even though other City Engineers or 7 Deputy Directors were invited to the same meetings. 8 • They did not invite her to trainings and, if she was invited, “[s]he was not allowed 9 to stay overnight [even] if the training was far away from the office.” 10 • They blamed her for work done by her co-workers, which was done without her 11 approval. 12 • They did not allow her to use a government car for business travel, such that she 13 was forced to use her own car. 14 FAC ¶¶ 10-12. Non-Asian men were not subjected to the same conduct. See FAC ¶ 10. 15 Ms. Wang reported the conduct of Mr. Herron and Mr. Folsom to her supervisor – and 16 apparently even the two men themselves – but the City did not take any steps to address the 17 conduct. See FAC ¶ 13. 18 In addition to the above, Ms. Wang alleges that, on several occasions in September and 19 October 2017, she heard her co-workers “making fun” of photos of slum areas in China. FAC ¶ 20 11. Ms. Wang reported the conduct to her supervisor, as well as Mr. Herron and Mr. Folsom, but 21 nothing was done to address the conduct. See FAC ¶ 11. 22 In November 2017, just a few months after she started working for the City, Mr. Herron 23 and Mr. Folsom terminated her employment with the City, “ostensibly because [she] would not 24 refrain from managerial duty.” FAC ¶ 14. (It is not clear from the FAC what Ms. Wang means by 25 “refrain[ing] from managerial duty.”). 26 Based on, inter alia, the above allegations, Ms. Wang has asserted the following causes of 27 action: 1 FEHA). 2 (2) Sexual harassment/hostile work environment – against all Defendants (pursuant to 3 Title VII and FEHA). 4 (3) Retaliation (i.e., termination based on Ms. Wang’s complaints about sexual 5 harassment) – against all Defendants (pursuant to Title VII and FEHA). 6 (4) Intentional infliction of emotional distress (“IIED”) – against all Defendants. 7 (5) Wrongful termination in violation of public policy – against the City only. 8 (6) Negligent hiring, training, and retention – against the City only. 9 (7) Discrimination based on race, color, and/or national origin – against all Defendants 10 (pursuant to Title VII and FEHA). 11 (8) Breach of implied contract and/or covenant of good faith and fair dealing – against all 12 Defendants. 13 (9) Violation of the Equal Pay Act – against all Defendants. 14 II. DISCUSSION 15 A. City’s Arguments 16 In its motion to dismiss, the City makes a number of arguments: 17 • Because there is a pending state court action based on the same underlying facts, 18 the Court should decline to exercise jurisdiction pursuant to the Colorado River 19 doctrine. 20 • If the Court does exercise jurisdiction, all federal claims should be dismissed 21 because (1) the Title VII claims (for sexual harassment/quid pro quo, sexual 22 harassment/hostile work environment, retaliation, and race discrimination) are 23 untimely and (2) Ms. Wang has failed to state a claim for a violation of the Equal 24 Pay Act. 25 • If the Court dismisses the federal claims (i.e., the Title VII and Equal Pay Act 26 claims), then it should decline to exercise supplemental jurisdiction over the state 27 law claims. 1 law), they are deficient because, e.g., (1) Ms. Wang did not present her common 2 law claims to the City before she filed suit1; (2) the common law claims for 3 wrongful termination and breach of contract cannot be asserted against a public 4 entity; (3) the common law claims for IIED and negligent hiring, training, and 5 retention are barred based on the exclusive remedy provided by the workers’ 6 compensation system; (4) the FEHA and common law claims are based on 7 conclusory allegations only; and (5) punitive damages cannot be asserted against a 8 public entity. 9 B. Colorado River 10 The City’s first argument is that this Court should decline to exercise jurisdiction over the 11 instant case – or at the very least, stay the instant case – based on the Colorado River doctrine. 12 See Seneca Ins. Co. v. Strange Land, Inc., 862 F.3d 835, 841 (9th Cir. 2017) (noting that, although 13 “federal courts have a ‘virtually unflagging obligation . . . to exercise the jurisdiction given them,’ 14 including in cases involving parallel state litigation,” a court may abstain “[u]nder ‘exceedingly 15 rare’ circumstances[] [based on] ‘considerations of wise judicial administration, giving regard to 16 conservation of judicial resources and comprehensive disposition of litigation’”). The City has 17 asked the Court to take judicial notice of the fact that, in October 2018, Ms. Wang filed a suit in 18 state court against the same three defendants as here (i.e., the City, Mr. Folsom, and Mr. Herron) 19 and based on essentially the same underlying facts. See RJN, Ex. B (state court complaint). 20 Although the instant case involves some different causes of action, there are many shared causes 21 of action between the state and federal court cases, in particular: 22 (1) Sexual harassment/quid pro quo. 23 (2) Sexual harassment/hostile work environment. 24 (3) Retaliation. 25 (4) IIED. 26 1 See Garcia v. L.A. Unified Sch. Dist., 173 Cal. App. 3d 701, 710 (1985) (noting that “[a]ctions 27 brought under the Fair Employment and Housing Act (FEHA), California’s own statutory scheme 1 (5) Wrongful termination in violation of public policy. 2 (6) Negligent hiring, training, and retention. 3 The causes of action asserted in this case, but not in the state court case, are: (7) race 4 discrimination; (8) breach of implied contract and/or covenant of good faith and fair dealing; and 5 (9) violation of the Equal Pay Act. 6 As the Court stated at the hearing on the motion, the Court defers ruling on the request to 7 stay pursuant to Colorado River. This is based on Ms. Wang’s statement at the hearing that she 8 intends to dismiss her state court action. If Ms. Wang does dismiss her state court action, then the 9 City’s Colorado River argument is moot (as the City conceded at the hearing). If she does not, the 10 Court will rule on the stay request. 11 C. Federal Claims 12 1. Title VII Claims 13 The City argues that Ms. Wang’s Title VII claims are all time barred. Title VII provides in 14 relevant part as follows:

15 If a charge filed with the Commission pursuant to subsection (b) is dismissed by the Commission . . . , the Commission . . . shall so 16 notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent 17 named in the charge . . . by the person claiming to be aggrieved . . . . 18 42 U.S.C. § 2000e-5(f)(1); see also Scholar v. Pac. Bell, 963 F.2d 264, 267 (9th Cir. 1992) (noting 19 that “[t]he language of the statute establishes the 90-day period as running from the ‘giving of 20 such notice’ rather than from the date claimant actually ‘receives’ notice in hand”). Here, the City 21 has asked the Court to take judicial notice of the Notice of Right to Sue that was issued by the 22 EEOC in response to Ms. Wang’s charge of discrimination. The Notice appears to have been 23 mailed on August 29, 2018. See Def.’s RJN, Ex. A (notice). The Notice states, on its face, that

24 [y]ou may file a lawsuit against the respondent(s) under federal law based on this charge in federal or state court. Your lawsuit must be 25 filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost. (The time limit for 26 filing suit based on a claim under state law may be different.) 27 RJN, Ex. A (emphasis in original). Assuming that Ms. Wang received the notice three days after 1 began to run on September 1, 2018,” and ended on November 30, 2018; however, Ms. Wang did 2 not file her federal action with the Title VII claim until August 27, 2019 (i.e., some eight months 3 after the limitations period expired). See Docket No. 1 (complaint). 4 In response, Ms. Wang does not dispute that the Notice was mailed on August 29, 2018. 5 In fact, in her FAC, she alleges that, “[o]n or around August 29, 2018, the EEOC issued Plaintiff 6 Notices of Right to Sue.” FAC ¶ 5. She suggests, however, that the statute of limitations should 7 be tolled for two reasons: (1) she was ill during the relevant period and (2) the EEOC gave her 8 confusing and/or incorrect information about the statute of limitations. These reasons are not 9 articulated in her FAC but rather in a declaration that she attached to her opposition brief. 10 The Ninth Circuit has held that the Title VII statute of limitations may be equitably tolled 11 in certain circumstances. More specifically,

12 relief from strict construction of a statute of limitations is readily available in extreme cases and gives the court latitude in a case-by- 13 case analysis. The equitable tolling doctrine has been applied by the Supreme Court in certain circumstances, but it has been applied 14 sparingly; for example, the Supreme Court has allowed equitable tolling when the statute of limitations was not complied with 15 because of defective pleadings, when a claimant was tricked by an adversary into letting a deadline expire, and when the EEOC’s 16 notice of the statutory period was clearly inadequate. Courts have been generally unforgiving, however, when a late filing is due to 17 claimant’s failure “to exercise due diligence in preserving his legal rights.” 18 19 Scholar, 963 F.2d at 268; see also Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999) (stating 20 that equitable tolling may be applied “where the complainant has been induced or tricked by his 21 adversary’s misconduct into allowing the filing deadline to pass,” or “when extraordinary 22 circumstances beyond the plaintiff’s control [such as severe mental incapacity], made it 23 impossible to file a claim on time”). The Ninth Circuit has also noted that,

24 [b]ecause the applicability of the equitable tolling doctrine often depends on matters outside the pleadings, it “is not generally 25 amenable to resolution on a Rule 12(b)(6) motion.” A motion to dismiss based on the running of the statute of limitations period may 26 be granted only “if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the 27 statute was tolled.” . . . For this reason, we have reversed dismissals Similarly, we must reverse if the factual and legal issues are not 1 sufficiently clear to permit us to determine with certainty whether the doctrine could be successfully invoked. 2 3 Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995). 4 In the instant case, Ms. Wang’s FAC on its face does indicate a statute-of-limitations 5 problem. However, as stated above, she has now articulated in her opposition brief/declaration 6 reasons why she should be allowed to amend her pleading to assert a basis for equitable tolling. 7 Unless the reasons would be futile, Ms. Wang should be permitted to amend. 8 To the extent Ms. Wang claims that she did not timely file her Title VII claim because she 9 was sick, the Court finds that position futile. In her opposition brief, she asserts that she had 10 “[p]hysical or mental incapacity” based on “bacterial flesh eating symptom[s]” and attaches a 11 doctor’s prescription to her declaration. See Opp’n at 3; see also Wang Decl., Ex. C (prescription 12 issued by Dr. Wong; appearing to prescribe a cream to be applied to the affected area). In her 13 declaration, she also claims that she “had [a] very high fever on and off at that time.” Wang Decl. 14 ¶ 3. Even if the Court were to credit this information, that does not explain why Ms. Wang took 15 eight months (i.e., until August 2019) to file her Title VII action in federal court. As the City 16 points out, Ms. Wang managed to file her suit in state court in late 2018/early 2019. See Def.’s 17 RJN, Ex. B (state court complaint). If she successfully managed to file her suit in state court, she 18 should have been able to do the same in federal court. Cf. Brown v. Dep’t of Navy, No. 90-55789, 19 1992 U.S. App. LEXIS 7378, at *9 (9th Cir. Apr. 14, 1992) (noting that “[i]t would have been 20 impossible for Brown to serve the Navy in a timely fashion after she received the return of 21 service”; “[i]n such a circumstance, equitable tolling will operate to give her a reasonable time in 22 which to effect service [but] Brown made no attempt to serve the Navy within a reasonable time 23 after receiving notice that such service was required,” and so “she cannot benefit from the 24 equitable tolling doctrine”). 25 However, to the extent Ms. Wang argues for equitable tolling because of confusing and/or 26 incorrect information provided by the EEOC, the Court shall give Ms. Wang leave to amend 27 because it is not clear that this position would be futile. Ms. Wang indicates that the situation was 1 letter stating that “the investigation [had] just started” on her charge of discrimination. Wang 2 Decl. ¶ 3. Ms. Wang further argues that the EEOC gave her bad information – i.e., when she 3 called the EEOC (presumably, to clear up her confusion), she was told that she had “one year to 4 file.” Wang Decl. ¶ 3. 5 In its reply brief, the City argues that

6 it is not believable that the EEOC would misstate the federal statutory deadline to file her lawsuit. It is far more likely that if this 7 conversation occurred, it was with California’s Department of Fair Employment and Housing (“DFEH”), which would have very likely 8 advised a claimant that they [sic] had one year to file state claims under California’s Fair Employment and Housing Act (“FEHA”), 9 per the then[-]applicable Cal. Government Code section 12965. 10 Reply at 2. While the City may ultimately be right (or it may even be that Ms. Wang did call the 11 EEOC and it told her that she had one year to file her state claims), on a motion to dismiss, the 12 Court cannot resolve factual disputes. Therefore, the Court cannot say that Ms. Wang’s claim for 13 equitable tolling based on an EEOC mistake would be futile. See, e.g., Viveros v. United States 14 Postal Serv., No. CV 10-8593 MMM (Ex), 2011 U.S. Dist. LEXIS 160753, at *13 n.34 (C.D. Cal. 15 Dec. 8, 2011) (not ruling on equitable tolling issue but noting “the strong precedent in favor of not 16 penalizing litigants for mistakes and misinformation from the EEOC”; citing cases from the 17 Second and Eighth Circuits). 18 In summary, based on the face of the complaint, Ms. Wang’s Title VII claims have a 19 timeliness problem but the Court shall give Ms. Wang leave to amend to plead a basis for 20 equitable tolling – in particular, based on confusing and/or incorrect information given by the 21 EEOC. She must plead specific facts and those facts must be based on a good faith belief; she 22 must comply with Federal Rule of Civil Procedure 11.2 Ms. Wang is not allowed to assert 23 equitable tolling on any other basis, including but not limited to alleged sickness. 24 2. Equal Pay Act Claims 25 In addition to the Title VII claims, Ms. Wang asserts one other federal claim – i.e., a claim 26 for violation of the Equal Pay Act. The Equal Pay Act provides in relevant part as follows: 27 1 No employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the 2 rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, 3 effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to 4 (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a 5 differential based on any other factor other than sex . . . . 6 29 U.S.C. § 206(d)(1) (emphasis added). The Ninth Circuit has stated that, “[t]o make out a case 7 under the Equal Pay Act, a plaintiff must prove that an employer is paying different wages to 8 employees of the opposite sex for equal work.” Hein v. Or. Coll. of Educ., 718 F.2d 910, 913 (9th 9 Cir. 1983); see also Kevari v. Scottrade, Inc., No. CV 18-819-JFW(GJSx), 2018 U.S. Dist. LEXIS 10 227343, at *13 (C.D. Cal. Aug. 31, 2018) (stating that, “[t]o allege an Equal Pay Act claim, a 11 plaintiff must allege facts showing that employees of the opposite sex are: (1) working in the same 12 establishment; (2) doing work requiring equal skill, effort, and responsibility, and which is 13 performed under similar working conditions; and (3) receiving unequal pay because of their sex”). 14 According to the City, Ms. Wang has failed to state a claim for relief pursuant to Federal Rule of 15 Civil Procedure 12(b)(6). 16 To overcome a Rule 12(b)(6) motion to dismiss after the Supreme Court’s decisions in 17 Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), 18 a plaintiff’s “factual allegations [in the complaint] ‘must . . . suggest that the claim has at least a 19 plausible chance of success.’” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014). The court 20 “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light 21 most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 22 1025, 1031 (9th Cir. 2008). But “allegations in a complaint . . . may not simply recite the 23 elements of a cause of action [and] must contain sufficient allegations of underlying facts to give 24 fair notice and to enable the opposing party to defend itself effectively.” Levitt, 765 F.3d at 1135 25 (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads 26 factual content that allows the court to draw the reasonable inference that the defendant is liable 27 for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a 1 unlawfully.” Id. (internal quotation marks omitted). 2 Based on the allegations in the FAC, the Court agrees that Ms. Wang has not plausibly 3 alleged an Equal Pay violation. For example: 4 • In her FAC, Ms. Wang indicates she was not given equal pay because she “was not 5 allowed to have [the] same accommodation/budget [as] the similar male employees 6 doing substantially equal work.” FAC ¶ 77; see also FAC ¶ 10 (alleging that “she 7 was not allowed to order supplies even though she had a supply budget to use”). In 8 her opposition, she suggests that, as a result, she was forced to buy her own 9 supplies, which included software and a laptop. See Opp’n at 5. But even if 10 similarly situated male employees were allowed to use their budgets as they 11 wished, there is no indication that their budgets were part of the compensation that 12 they received from the City – i.e., remuneration for employment. See 29 C.F.R. § 13 1620.10 (“Under the EPA, the term ‘wages’ generally includes all payments made 14 to [or on behalf of] an employee as remuneration for employment.”). 15 • In her FAC, Ms. Wang also indicates that she was not given equal pay because “she 16 was not allowed to use [the] City’s vehicle for business travel.” FAC ¶ 10. 17 According to Ms. Wang, “[o]n and off Nov. 1, [2017], she went to the sites . . . 18 using [her] own car, . . . which she bought on the cost of about $16k to handle work 19 and commute for this job only as her other car is not that reliable for . . . driving” 20 on “treacherous, deteriorated roads.” FAC ¶ 12. The federal regulations do 21 indicate that “use of company car” can be a wage. 29 C.F.R. § 1620.10. They also 22 indicate that certain business expenses can also be deemed a wage. The problem 23 for Ms. Wang is that she does not allege in her complaint that (1) she asked the 24 City to compensate her for the use of her personal vehicle for business purposes 25 (e.g., based on mileage incurred) and that (2) the City denied her request. Nor does 26 she allege that the men who were allowed use of a company car (or who were given 27 compensation for use of a personal vehicle) were similarly situated. 1 was not allowed to stay overnight if the training was far away from the office.” 2 FAC ¶ 10. Section 1620.10 indicates that hotel accommodations can be a form of 3 wage. But similar to above, Ms. Wang has not alleged in the complaint that (1) she 4 paid for any hotel accommodations out of her own pocket, (2) she asked the City to 5 compensate her for that expense, and (3) the City denied her request. Nor does she 6 allege that male workers who were given hotel accommodations were similarly 7 situated to her (e.g., lived the same distance away). 8 The Court also notes that new assertions made by Ms. Wang in her opposition brief also do 9 not support an Equal Pay claim – at least, not as they are currently framed. For example: 10 • In her opposition brief, Ms. Wang alleges for the first time that she was actually 11 given a smaller salary compared to certain men: “[I]n the organizational chart, 12 same level as Doug [Herron], [Greg] Folsom, etc., but she got about 50% less pay.” 13 Opp’n at 4. In its reply brief, the City argues that this is not an Equal Pay violation 14 because Mr. Herron and Mr. Folsom had completely different titles and job duties 15 from Ms. Grant (being, respectively, the Director of Public Works and the City 16 Manager in contrast to City Engineer/Deputy Director of Public Works). The City 17 raises a fair point. Given the different job titles, which suggests different job 18 duties, there is not a sufficient basis to infer that Ms. Wang and the two men were 19 doing “equal work on jobs the performance of which requires equal skill, effort, 20 and responsibility.” 29 U.S.C. § 206(d)(1). 21 • In her opposition brief, Ms. Wang alleges for the first time that she was not given a 22 relocation fee (minimum of $5,000). See Opp’n at 5. Although this potentially 23 could support a claim of differential wages, there is no indication that (1) other 24 similarly situated male employees received relocation fees and (2) Ms. Wang and 25 those men were doing “equal work on jobs the performance of which requires equal 26 skill, effort, and responsibility.” 29 U.S.C. § 206(d)(1). 27 Accordingly, the Court dismisses the Equal Pay claim as alleged. The Court shall give Ms. 1 (i.e., consistent with her obligations under Rule 11) and she must address the deficiencies 2 identified above. Again she must allege in good faith specific facts. She may not amend, 3 however, to assert an Equal Pay claim based on the claim that she “was not allowed to have [the] 4 same accommodation/budget [as] the similar male employees doing substantially equal work.” 5 FAC ¶ 77. 6 3. Supplemental Jurisdiction 7 Because the Court is not, at this time, dismissing the federal claims with prejudice, it does 8 not, at this time, decline supplemental jurisdiction over the state law claims. 9 D. State Claims 10 Ms. Wang’s state claims are as follows: 11 • Employment discrimination pursuant to FEHA (based on sex discrimination, race 12 discrimination, and retaliation). 13 • IIED. 14 • Wrongful termination in violation of public policy. 15 • Negligent hiring, training, and retention. 16 • Breach of implied contract and/or covenant of good faith and fair dealing. 17 1. FEHA Claims 18 The City argues that the FEHA claims (and presumably the Title VII claims as well) are 19 deficient because they are conclusorily pled. The specific FEHA claims at issue are as follows: 20 sexual harassment/quid pro quo; sexual harassment/hostile work environment; retaliation; and race 21 discrimination. It is difficult to understand why the City is contending that these claims are not 22 pled with sufficient specificity. For example, it is clear why Ms. Wang asserts a quid pro quo 23 sexual harassment claim based on the alleged conduct of her supervisor, Mr. Herron. The Court 24 therefore denies the motion to dismiss the FEHA claims.3 25 26 3 In so ruling, the Court is not expressing any opinion on whether, e.g., the sex harassment claims 27 against Mr. Folsom (in contrast to Mr. Herron) are plausible and whether the race discrimination 1 2. IIED 2 The City challenges the IIED claim on various grounds – e.g., (1) it is conclusorily pled; 3 (2) Ms. Wang failed to present the IIED claim to the City as required by the California Tort 4 Claims Act (“CTCA”); and (3) the claim is barred by workers’ compensation preemption. 5 The first argument is weak because the IIED claim seems to be based on the employment 6 discrimination claims, and the basis for those claims is sufficiently clear (i.e., there are 7 nonconclusory allegations in support of the claims). 8 The City’s third argument is also problematic. The City correctly notes that, in Miklosy v. 9 Regents of University of California, 44 Cal. 4th 876 (2008), a whistleblower retaliation case, the 10 California Supreme Court found that an IIED claim was not viable because of workers’ 11 compensation law.

12 Plaintiffs allege defendants engaged in “outrageous conduct” that was intended to, and did, cause plaintiffs “severe emotional 13 distress,” giving rise to common law causes of action for intentional infliction of emotional distress. The alleged wrongful conduct, 14 however, occurred at the worksite, in the normal course of the employer-employee relationship, and therefore workers’ 15 compensation is plaintiffs’ exclusive remedy for any injury that may have resulted. 16 Shoemaker v. Myers is of particular relevance here because it 17 involved termination of a whistleblower employee. We said: “To the extent plaintiff purports to allege any distinct cause of action, not 18 dependent upon the violation of an express statute or violation of fundamental public policy, but rather directed at the intentional, 19 malicious aspects of defendants’ conduct … , then plaintiff has alleged no more than the plaintiff in Cole v. Fair Oaks Fire 20 Protection Dist. . . . . The kinds of conduct at issue (e.g., discipline or criticism) are a normal part of the employment relationship. Even 21 if such conduct may be characterized as intentional, unfair or outrageous, it is nevertheless covered by the workers’ compensation 22 exclusivity provisions.” We reaffirmed this holding in Livitsanos v. Superior Court, which also involved a terminated employee: “So 23 long as the basic conditions of compensation are otherwise satisfied (Lab. Code, § 3600), and the employer’s conduct neither 24 contravenes fundamental public policy nor exceeds the risks inherent in the employment relationship, an employee’s emotional 25 distress injuries are subsumed under the exclusive remedy provisions of workers’ compensation.” 26 27 Id. at 902 (emphasis omitted and added). 1 was a whistleblower retaliation case and here Ms. Wang’s IIED claim seems to be based on 2 employment discrimination – which is not a normal part of an employment relationship. See, e.g., 3 Hardin v. Mendocino Coast Dist. Hosp., No. 17-cv-05554-JST, 2018 U.S. Dist. LEXIS 100238, at 4 *25-26 (N.D. Cal. June 13, 2018) (holding that IIED claim was not barred by workers’ 5 compensation exclusivity because claim was based on employment discrimination and retaliation); 6 Silva v. Solano Cty., No. 2:13-cv-02165-MCE-EFB, 2014 U.S. Dist. LEXIS 154362, at *9 (E.D. 7 Cal. Oct. 29, 2014) (stating that, “[w]here an employer’s illegal discriminatory practices cause 8 emotional distress to an employee, the law is clear that such distress is not barred by workers’ 9 compensation exclusivity”); City of Moorpark v. Superior Court, 18 Cal. 4th 1143, 1155 (1998) 10 (indicating that “compensation bargain cannot encompass conduct, such as sexual or racial 11 discrimination, obnoxious to the interests of the state and contrary to public policy and sound 12 morality”) (internal quotation marks omitted); Light v. Cal. Dep’t of Parks & Rec., 14 Cal. App. 13 5th 75, 101 (2017) (stating that “unlawful discrimination and retaliation in violation of FEHA falls 14 outside the compensation bargain and therefore claims of intentional infliction of emotional 15 distress based on such discrimination and retaliation are not subject to workers’ compensation 16 exclusivity”); Accardi v. Superior Court, 17 Cal. App. 4th 341, 352 (1993) (stating that “a claim 17 for emotional and psychological damage, arising out of employment, is not barred where the 18 distress is engendered by an employer’s illegal discriminatory practices”). 19 Nonetheless, the City’s second argument has merit. The CTCA generally provides that 20 “all claims for money or damages against local public entities” “shall be presented” to the public 21 entity before an individual may file an action against the public entity. Cal. Gov’t Code § 905; see 22 also id. § 945.4 (providing that “no suit for money or damages may be brought against a public 23 entity on a cause of action for which a claim is required to be presented . . . until a written claim 24 therefor has been presented to the public entity and has been acted upon by the board, or has been 25 deemed to have been rejected by the board”). There is no indication in the FAC that Ms. Wang 26 presented her claim to the City prior to filing suit, and, in her opposition, Ms. Wang does not make 27 any assertion that she did in fact present her claim. Rather, in her opposition, Ms. Wang suggests 1 basis of that argument is unclear. She mentions equitable tolling for her employment 2 discrimination claims (Title VII at least) but that has nothing to do with her separate claim for 3 IIED; filing a claim under the CTCA is different and distinct from filing claims with the EEOC or 4 DFEH. 5 The Court therefore dismisses the IIED claim based on the failure to present. The 6 dismissal is with leave to amend if Ms. Wang can, in good faith (i.e., consistent with her Rule 11 7 obligations), assert that she did present a claim to the City or that she has a valid basis for not 8 complying with the presentment requirement. 9 3. Wrongful Termination 10 The City moves for dismissal of the wrongful termination claim on various grounds – e.g., 11 (1) it is only conclusorily pled; (2) such a claim cannot be asserted against a public entity; and (3) 12 Ms. Wang failed to present the claim to the City as required by the CTCA. Here, the Court need 13 only entertain the second argument. 14 As the City points out, the California Supreme Court has held that a claim for wrongful 15 termination is not available against a public entity. See Miklosy, 44 Cal. 4th at 899. In Miklosy, 16 the Court explained as follows:

17 The Government Claims Act (§ 810 et seq.) establishes the limits of common law liability for public entities, stating: “Except as 18 otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the 19 public entity or a public employee or any other person.” (§ 815, subd. (a), italics added.) The Legislative Committee Comment to 20 section 815 states: “This section abolishes all common law or judicially declared forms of liability for public entities, except for 21 such liability as may be required by the state or federal constitution, e.g., inverse condemnation. …” (Legis. Com. com., 32 West’s Ann. 22 Gov. Code (1995) foll. § 815, p. 167, italics added.) Moreover, our own decisions confirm that section 815 abolishes common law tort 23 liability for public entities. (See Eastburn v. Regional Fire Protection Authority (2003) 31 Cal. 4th 1175, 1179; Zelig v. County 24 of Los Angeles (2002) 27 Cal. 4th 1112, 1127-1128; see also Adkins v. State of California (1996) 50 Cal. App. 4th 1802, 1817-1818; 25 Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal. App. 3d 859, 866-867.) 26 27 Id. (emphasis in original). 1 cv-02913-SI, 2017 U.S. Dist. LEXIS 166377, at *21-22 (N.D. Cal. Oct. 6, 2017) (agreeing that 2 “plaintiff’s claim is barred under the California Government Code because plaintiff cannot assert a 3 common law claim for wrongful termination in violation of public policy against a public entity”; 4 citing Miklosy and § 815). Moreover, none of the cases cited by Ms. Wang indicate to the 5 contrary. See, e.g., Derby v. City of Pittsburg, No. 16-cv-05469-SI, 2017 U.S. Dist. LEXIS 6 25660, at *23 (N.D. Cal. Feb. 23, 2017) (noting that, “[u]nder the Government Claims Act, public 7 entities are not liable for injuries arising from acts or omissions of the public entity except as 8 provided by statute”; one “statutory exception can be found in Government Code § 815.6, which 9 provides[:] ‘Where a public entity is under a mandatory duty imposed by an enactment that is 10 designed to protect against the risk of a particular kind of injury, the public entity is liable for an 11 injury of that kind proximately caused by its failure to discharge the duty unless the public entity 12 establishes that is exercised reasonable diligence to discharge the duty’”) (emphasis added). Ms. 13 Wang has not asserted a wrongful termination claim based on a statute. 14 Moreover, for the reasons stated above, Ms. Wang failed to comply with the CTCA. The 15 Court thus dismisses the claim for wrongful termination with prejudice. 16 4. Negligent Hiring, Training, and Retention 17 The City moves to dismiss the claim for negligent hiring, training, and retention based on 18 several grounds: (1) the claim is conclusorily pled; (2) Ms. Wang failed to present the claim to the 19 City as required by the CTCA; and (3) the claim is barred by workers’ compensation preemption. 20 The City’s first argument is not without some merit. Although the FAC indicates that the 21 negligence claim is based on the City’s failure to train (e.g., with respect to sex and race 22 discrimination), see FAC ¶¶ 53-54, Ms. Wang does not provide any specific information about the 23 alleged failure to train, other than the fact that the discrimination occurred and that a “proper 24 investigation” was not conducted into her complaints about discrimination. 25 The second argument also has merit for reasons similar to those stated above (on the IIED 26 claim). 27 However, the Court rejects the third argument. Several courts have found that a 1 that falls outside the normal risk of the compensation bargain.” Evans v. Hard Rock Cafe Int’l 2 (USA), Inc., No. 2:07-cv-1074 FCD DAD, 2007 U.S. Dist. LEXIS 70432, at *12 (E.D. Cal. Sep. 3 24, 2007); see also Muniz v. UPS, 731 F. Supp. 2d 961, 976 (N.D. Cal. 2010) (Wilken, J.) (noting 4 that plaintiff’s claim for negligent hiring, training, and supervision “rests on facts supporting her 5 claim for general discrimination” and therefore is not preempted by the California Workers’ 6 Compensation Act). 7 The Court therefore dismisses the negligence claim based on failure to state a claim for 8 relief and failure to comply with the CTCA presentment requirement. The dismissal is with leave 9 to amend (e.g., if Ms. Wang can provide more specificity and if she can, in good faith, assert that 10 she did present a claim to the City or that she has a valid basis for not complying with the 11 presentment requirement). 12 5. Breach of Implied Contract or Implied Covenant. 13 For Ms. Wang’s claim for breach of implied contract or implied covenant, the City makes 14 the following arguments: (1) the claim is conclusorily pled; (2) “‘no public employee has a vested 15 right to continue in public employment beyond the time or contrary to the terms and conditions 16 fixed by law,’” Mot. at 9 (quoting Miller v. State of Cal., 18 Cal. 3d 808, 813 (1977)); and (3) Ms. 17 Wang failed to present her claim to the City as required by the CTCA. 18 The Court rejects the City’s first argument. Ms. Wang has alleged that she had an 19 employment agreement with the City under which she would not be disciplined or terminated 20 “except for good cause and with notice and an opportunity to be heard” and under which she 21 “would be evaluated in a fair and objective manner and afforded progressive discipline.” FAC ¶ 22 64. She has also alleged that the “employment agreement was evidenced in various written 23 documents, including but not limited to defendant’s employee handbook and personnel policies 24 and procedures.” FAC ¶ 65. 25 The Court also rejects the City’s second argument. As noted above, the City bases its 26 second argument on Miller. In Miller, the plaintiff had been a civil servant employed by the state. 27 He brought a mandamus action and an action for breach of contract against the state when he was 1 provided in the statute when he first entered state service many years earlier).

2 If the compulsory age of retirement had not been reduced from 70 to 67, plaintiff would have been permitted to continue in state 3 employment until September 1, 1977. Had he done so, remaining in his final position and receiving salary increases as the Legislature 4 provided, his retirement pension at age 70 based on the benefit factor in effect under former law would have been at least $ 2,365 5 per month [which was more than he was receiving under the current law having been forced to voluntarily retire at age 67]. 6 7 Id. at 812. 8 The California Supreme Court in Miller first addressed the plaintiff’s argument that he had 9 “a vested, contractual right based on the mandatory retirement age in effect when he was first 10 employed by the state, to continue in state service until age 70.” Id. at 813 (emphasis in original). 11 The Court rejected the argument, stating as follows:

12 [I]t is well settled in California that public employment is not held by contract but by statute and that, insofar as the duration of such 13 employment is concerned, no employee has a vested contractual right to continue in employment beyond the time or contrary to the 14 terms and conditions fixed by law. . . .

15 In view of these long and well settled principles, we conclude that the power of the Legislature to reduce the tenure of plaintiff’s civil 16 service position and thereby to shorten his state service, by changing the mandatory retirement age was not and could not be limited by 17 any contractual obligation. 18 Id. at 813-14; see also Bernstein v. Lopez, 321 F.3d 903, 906 (9th Cir. 2003) (stating that “neither 19 an express nor an implied contract can restrict the reasons for, or the manner of, termination of 20 public employment provided by California statute”). 21 Miller, however, does not stand for the proposition that a public employment relationship 22 is governed only by statute. Indeed, in Retired Employees Association of Orange County, Inc. v. 23 County of Orange, 52 Cal. 4th 1171 (2011) – a post-Miller decision – the California Supreme 24 Court rejected the proposition that “public employee compensation is strictly limited to that which 25 is expressly provided in a statute or ordinance” and explained that “‘[g]overnmental subdivisions 26 may be bound by an implied contract if there is no statutory prohibition against such 27 arrangements.’” Id. at 1180-81. The Court also indicated that Miller and similar cases stood 1 variance with the terms of the contract as expressly agreed or as prescribed by statute.’” Id. at 2 1181. (In Retired Employees, the Court went on to give the cautionary note that “our ‘often 3 quoted language that public employment is not held by contract’ has limited force where . . . the 4 parties are legally authorized to enter (and have in fact entered) into bilateral contracts to govern 5 the employment relationship.” Id. at 1182 (noting, e.g., that local governments are authorized to 6 meet and confer with employee bargaining units).) 7 In the instant case, the City does not point to any conflict between the implied contract 8 terms asserted by Ms. Wang and any statute. Hence, Miller is not a bar to Ms. Wang’s implied 9 contract/covenant claim. 10 While, for the reasons stated above, the City’s first and second arguments lack merit, its 11 final argument – based on the CTCA presentation requirement – is valid. See, e.g., City of 12 Stockton v. Superior Court, 42 Cal. 4th 730, 737-38 (2007) (holding that contract claims are 13 subject to the CTCA’s presentment requirement; adding that the CTCA is better referred to as the 14 Government Claims Act “to reduce confusion”); Loehr v. Ventura Cty. Cmty. Coll. Dist., 147 Cal. 15 App. 3d 1071, 1079 (1983) (stating that “[a]ctions for breach of contract also fall within the scope 16 of claims for ‘money or damages’”). That is, there is no indication in the FAC that Ms. Wang 17 presented her claim to the City prior to filing suit, and, in her opposition, Ms. Wang does not make 18 any assertion that she did in fact present her claim. 19 Accordingly, the Court dismisses the implied contract/covenant claim based on the failure 20 to present. The dismissal is with leave to amend if Ms. Wang can, in good faith, assert that she 21 did present a claim to the City or that she has a valid basis for not complying with the presentment 22 requirement. 23 6. Punitive Damages 24 The City’s final argument is that, for the state claims at least, punitive damages against it, 25 as a public entity, are not available.4 The City is correct. California Government Code § 818 26 4 The City does not clearly make an argument that punitive damages are unavailable against it 27 under Title VII or the Equal Pay Act. See Harvey v. City of San Diego, No. 09-CV-0740 DMS 1 provides: “Notwithstanding any other provision of law, a public entity is not liable for damages 2 awarded under Section 3294 of the Civil Code [i.e., punitive damages] or other damages imposed 3 primarily for the sake of example and by way of punishing the defendant.” Cal. Gov’t Code § 4 818. See, e.g., Williams v. Lorenz, No. 15-cv-04494-BLF, 2018 U.S. Dist. LEXIS 190023, at *9 5 (N.D. Cal. Nov. 5, 2018) (stating that “the California Supreme Court has interpreted § 818 to 6 prohibit awards of punitive damages against municipalities in cases involving FEHA claims”). 7 Ms. Wang’s citation to California Government Code § 825 is unavailing. Section 825(a) 8 includes the following provision: “Nothing in this section authorizes a public entity to pay that 9 part of a claim or judgment that is for punitive or exemplary damages.” Id. § 825. So too is Ms. 10 Wang’s reliance on California Government Code § 820.2, which simply provides that, “[e]xcept as 11 otherwise provided by statute, a public employee is not liable for an injury resulting from his act 12 or omission where the act or omission was the result of the exercise of the discretion vested in 13 him, whether or not such discretion be abused.” Id. § 820.2. 14 The Court therefore dismisses all claims for punitive damages against the City. 15 III. CONCLUSION 16 For the foregoing reasons, the Court defers in part, grants in part, and denies in part the 17 City’s motion to dismiss. More specifically: 18 • The Court defers ruling on the motion to dismiss or stay pursuant to the Colorado 19 River doctrine. It is the Court’s understanding that Ms. Wang will dismiss her state 20 court action, in which case the Colorado River argument will be moot. 21 • The Court dismisses the Title VII claims because the face of the complaint 22 indicates that there is a time bar. Ms. Wang, however, has leave to amend her Title 23 VII claims to assert equitable tolling – more specifically, based on confusing and/or 24 incorrect information given to her by the EEOC. Ms. Wang is not allowed to assert 25 equitable tolling based on any other grounds. 26 1981a(b)(1)); 29 U.S.C. § 216(b) (providing that “[a]ny employer who violates the provisions of 27 section 206 or section 2017 of this title shall be liable to the employee or employees affected in the 1 e The Equal Pay claim is dismissed but with leave to amend. In amending, Ms. 2 Wang must address the deficiencies identified above, if she can do so in good faith 3 (i.e., consistent with her Rule 11 obligations). 4 e The FEHA claims are not conclusorily pled and therefore shall not be dismissed at 5 this time. 6 e The claim for wrongful termination in violation of public policy is dismissed with 7 prejudice under Miklosy. 8 e The remaining state law claims — for IIED, negligence, and breach of implied 9 contract/covenant — are dismissed for failure to comply with the CTCA’s 10 presentment requirement. Ms. Wang has leave to amend if she can, in good faith 11 (i.e., consistent with her Rule 11 obligations), assert that she did present a claim to 12 the City or that she has a valid basis for not complying with the presentment 5 13 requirement. The negligence claim is also dismissed based on a failure to plead 14 with sufficient specificity. If Ms. Wang amends the negligence claim, she must 3 15 provide more specificity — i.e., explain the factual basis of the claim. 16 e On punitive damages for the state claims, the City’s motion to dismiss is granted. 3 17 Ms. Wang shall file an amended complaint by April 2, 2020. The City shall file its 18 || response to the amended complaint by April 23, 2020. 19 This order disposes of Docket No. 29. 20 21 IT IS SO ORDERED. 22 23 Dated: March 2, 2020 24 <4 6 ED M. CHEN United States District Judge 27 28