School District Gets Employee’s Harassment And Retaliation Claims Dismissed

Category: Client Update
Date: Jun 4, 2019 11:13 AM

Aurora Le Mere began working as a teacher for Los Angeles Unified School District (“LAUSD”) in 2002. While working at LAUSD, Le Mere filed numerous claims and complaints. Le Mere filed two workers’ compensation claims and at least two administrative complaints alleging that LAUSD violated provisions of the Education Code. In 2007, Le Mere filed a civil action against LAUSD and two individuals for discrimination, retaliation, and civil rights violations. In 2015, Le Mere filed a second civil action against LAUSD and six individuals alleging that she had endured a pattern of continued harassment, intimidation, discrimination, hostility, and retaliation following her various complaints.

LAUSD demurred to Le Mere’s 2015 civil action. In other words, LAUSD requested the trial court to determine, even assuming that the incidents Le Mere claimed were true, that she still had no case under the law. The trial court sustained LAUSD’s demurrer and dismissed many of Le Mere’s claims, including all of the claims against individual defendants. Subsequently, Le Mere filed a First Amended Complaint (“FAC”) asserting the same causes of action against LAUSD and the individual defendants. LAUSD demurred again, and for the same reasons as before, the trial court dismissed her complaint. Le Mere then filed a Second Amended Complaint (“SAC”) alleging that LAUSD: (1) harassed her in violation of Education Code sections 44110 through 44114; (2) violated Labor Code section 1102.5; and (3) violated Labor Code section 226.7. The first claim for harassment was newly added. In February 2016, prior to filing her SAC, Le Mere filed a claim under the Government Claims Act, which is a prerequisite for bringing certain claims against a public entity. LAUSD demurred once again, and the trial court dismissed Le Mere’s lawsuit. Le Mere appealed.

On appeal, Le Mere argued that the trial court improperly dismissed the retaliation claim under the California Fair Employment and Housing Act (“FEHA”) that she asserted in her FAC. The Court of Appeal disagreed. The court noted that the elements of a claim for retaliation under the FEHA are: (1) the employee’s involvement in a protected activity; (2) retaliatory animus on the part of the employer; (3) an adverse employment action; (4) a causal link between the retaliatory animus and the adverse action; (5) damages; and (6) causation. However, the court noted, Le Mere’s FAC did not name the individual defendants engaged in any retaliatory conduct or even allege the named defendants were LAUSD employees. Further, the FAC did not allege that the individual defendants knew about Le Mere’s 2007 lawsuit, which Le Mere had identified as her protected activity. Moreover, the court noted that almost two years elapsed between the 2007 lawsuit and the first alleged instances of retaliation in 2009. This was not sufficient to establish causation. Thus, the trial court properly dismissed the retaliation claim.

Le Mere also argued that the trial court erred in dismissing the harassment claim under the Education Code she asserted in her SAC. Again, the Court of Appeal affirmed the trial court’s ruling. Le Mere filed her SAC 14 months after the original complaint and offered no explanation for asserting the new cause of action. Further, the new cause of action was not properly pled because it did not allege that a complaint had been lodged with local law enforcement, which is a prerequisite for a harassment claim under Education Code sections 44110 through 44114. Accordingly, the trial court properly dismissed this claim in Le Mere’s SAC.

Finally, Le Mere argued that the trial court improperly dismissed her Labor Code section 1102.5 claim in her SAC. The Court of Appeal disagreed once again. In order to bring a Labor Code section 1102.5 claim against a public entity, the person must comply with the Government Claims Act. Under that Act, a person must first file a claim for money or damages with the public entity. Further, the claim must usually be presented to the public entity within six months after the alleged bad act occurred. Failure to meet these requirements bars a person from suing the entity. Here, Le Mere eventually filed a claim in February 2016,  but that was one year after Le Mere filed the initial complaint and several months after she filed the FAC. Thus, the Court of Appeal concluded that the trial court properly dismissed the claim.

Le Mere v. Los Angeles County Unified School District, 2019 WL 2098780 (2019).

Note:

LCW has a thriving litigation practice.  LCW attorneys are very successful in using all available tools to convince courts to dismiss claims against public entities.

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