Filed 12/19/18 Borja v. City of Adelanto CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Jr., Judge. Reversed.

Alderson Law Firm and James A. Alderson for Plaintiff and Appellant.

Jackson Lewis, Sherry L. Swieca and Philip Johnson for Defendants and Respondents.

Plaintiff and appellant Mike Borja (Borja) sued defendants and respondents City of Adelanto (the City), Richard Kerr (Kerr), Jermaine Wright (Wright), and John Woodard, Jr. (Woodard). Borja brought (1) a hostile work environment cause of action; (2) wrongful termination causes of action based upon age discrimination, being a whistleblower, and retaliation; and (3) three causes of action alleging violations of due process under the California Constitution. The City, Kerr, Wright, and Woodard (collectively, defendants) filed an anti-SLAPP motion. (Code Civ. Proc., § 425.16; hereinafter, § 425.16.) The trial court granted the motion. Borja contends the trial court erred by granting the anti-SLAPP motion. We reverse the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. FIRST AMENDED COMPLAINT

Kerr was mayor of the City. Wright and Woodard were members of the city council. Borja began working for the City on June 6, 2006, as a job coordinator. Borja received excellent performance reviews. In Borja’s role with the City, he had a dispute with Kerr. During Kerr’s campaign for mayor, “he made it known that he sought to fire [Borja].” Kerr took office as mayor on February 1, 2015.

Jim Hart (Hart) was city manager on February 1, 2015. From February 2015 through July 2015, Kerr sent e-mails to city councilmembers, the city manager, and the city attorney, demanding that Borja be fired. Kerr also held meetings with city councilmembers, the city manager, and the city attorney to demand that Borja be fired. The City is a charter city. The City’s charter provides that the city manager has sole authority over the City’s employees—the mayor and councilmembers do not have authority over employees. Hart and the city attorney refused to terminate Borja’s employment, explaining that Kerr was violating the City’s charter and the Brown Act.

In February 2015, Borja learned of Kerr’s e-mails and meetings concerning terminating Borja’s employment. Hart assured Borja that Kerr could not terminate Borja’s employment. Borja complained to human resources “about the charter violations and the Brown Act violations,” but no action was taken to remedy his complaints.

In February 2015, Tim Thornton (Thornton) replaced Hart as city manager. Kerr, Wright, and Woodard argued that the City was suffering a budget deficit and needed to terminate the employment of some staff members. Thornton proposed a budget, which included retaining Borja’s job, and the city council approved the budget.

In May 2015, Borja’s name was placed on “several” closed session meeting agendas. Borja was not given notice of the closed session meetings. In August 2015, Cindy Herrera (Herrera) replaced Thornton as city manager. Kerr, Wright, and Woodard “controlled Mrs. Herrera and directly made her terminate [Borja].”

On July 16, 2015, Borja was placed on administrative leave. “[F]iscal issues” was the reason given for the layoff. On July 21, Borja requested pretermination and posttermination hearings. Borja’s pretermination hearing was held on July 28. Herrera attended the meeting. Herrera was unaware that she had the authority to retain Borja. Herrera believed she needed to consult Kerr in order to retain Borja.

The City unilaterally chose the posttermination hearing date and provided no notice concerning the hearing officer’s identity. Borja informed the City that the hearing officer needed to be jointly selected and that discovery needed to be conducted prior to the hearing. The City took the posttermination hearing date off calendar. Borja’s attorney issued deposition notices to councilmembers. Defendants’ attorney instructed defense witnesses not to appear for depositions. Approximately one year later, the City hired a defense attorney to be the hearing officer. Borja objected. Borja filed a Fair Employment and Housing Act (FEHA) complaint and received a right to sue letter. A posttermination hearing was not held.

Borja’s first cause of action was for a hostile work environment in violation of FEHA. (Gov. Code, § 12900 et seq.) Borja alleged that, on a daily basis, Kerr and Wright told City employees that they would have Borja’s employment terminated. Defendants created a hostile work environment by making false statements about Borja’s work ethic, holding closed hearings about Borja without notice to Borja, constantly watching Borja, and scrutinizing all of Borja’s decisions. Borja asserted his employment was terminated under the pretext of budget problems. Borja suffered mental and emotional distress due to the hostile work environment.

Borja’s second cause of action alleged wrongful termination due to age discrimination. Borja was more than 35 years old when his employment was terminated. The person who replaced Borja “was substantially less qualified than [Borja].” Borja’s third cause of action alleged wrongful termination due to Borja being a whistleblower. Borja alleged he complained to the City about Kerr, Wright, and Woodard violating the City’s charter and the Brown Act. After Borja’s complaint, he was subjected to a hostile work environment and then fired. Borja’s fourth cause of action asserted wrongful termination due to retaliation. Borja’s fourth cause of action repeated the allegations from his third cause of action.

Borja’s fifth cause of action alleged a violation of due process under the California Constitution, due to the failure to provide Borja with notice of the closed session meetings in which his name was on the agendas. Borja’s sixth cause of action asserted a violation of due process under the California Constitution, due to the failure to provide Borja with a pretermination hearing with a person who had the authority to rehire Borja. Borja’s seventh cause of action alleged a violation of due process under the California Constitution, due to the failure to provide Borja with a posttermination hearing.

B. ANTI-SLAPP MOTION

Defendants filed an anti-SLAPP motion. In 2014, Kerr and Woodard campaigned “on the promise of addressing the fiscal issues of the City.” Kerr, Wright, and Woodward believed the City’s financial issues could be resolved through reducing expenses, such as by consolidating or eliminating unnecessary jobs. Borja “was employed as a Senior Management Analyst.” Borja “was responsible for economic development of the City and securing tax revenue.” Defendants concluded Borja’s job “could be absorbed by other employees or otherwise reassigned.” A budget was approved that eliminated Borja’s job. Borja’s layoff became effective on July 31, 2015.

Borja’s wrongful termination claims arise from protected activity because Borja was terminated “through the City Council’s general plan to balance the City’s budget in light of a Fiscal Emergency,” which is a matter of public interest. Borja’s due process claims arise from protected activity because they concern “governmental speech and legislative action by [the] city council.” Defendants asserted Borja’s “lawsuit is a direct attack on the city council’s decision to deliberate about, discuss and recommend that his position be abolished due to the budgetary issues and the lack of necessity for his position.”

C. OPPOSITION

Borja opposed defendants’ anti-SLAPP motion. Borja asserted, “The utterance of false allegations against his work ethic, negative comments about his person and his work performance, false claims of discrimination and personal preference, does not chill ‘participation in matters of public significance[]’ or of public interest.” (Boldface and italics omitted.) Borja asserted, “[T]he statements . . . were not in furtherance of government business and outside the scope of determining the fiscal aspects of the City.”

D. RULING

The trial court found Borja’s allegations arose from protected activity. In regard to the hostile work environment cause of action, the trial court found the cause of action arose from protected activity because the allegations concerned Kerr’s campaign for public office and “address[ed] employment matters in associated [sic] with legislative matters, e.g., the City’s fiscal issues.”

The trial court found the wrongful termination causes of action arose from protected activity because they concerned “legislative action associated with claimed fiscal issues.” The trial court found the due process causes of action arose from protected activity because “the gravamen of [Borja’s] allegations arise from actions taken that are associated with a legislative proceeding or in connection with issues under legislative consideration, i.e., the fiscal issues before the City of Adelanto which in turn affected [Borja’s] position.”

The trial court found Borja failed to demonstrate a probability of prevailing on his causes of action. The trial court granted defendants’ anti-SLAPP motion.

DISCUSSION

A. CONTENTION

Borja contends the trial court erred by granting the anti-SLAPP motion.[1]

B. LAW AND STANDARD OF REVIEW

The anti-SLAPP statute is designed to “encourage continued participation in matters of public significance” by stopping lawsuits that would otherwise chill a person’s public participation due to abuse of the judicial process. (§ 425.16, subd. (a).) There are two steps to determine if a lawsuit is designed to curb the defendants’ participation in matters of public significance.

The first step is examining the causes of action to determine if they arise from any act in furtherance of the defendants’ “right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” (§ 425.16, subd. (b).) The second step is determining whether the plaintiff has a probability of prevailing on his claims. (§ 425.16, subd. (b).) If a cause of action arises from an act in furtherance of the defendants’ right of petition or free speech and the plaintiff does not have a probability of prevailing, then the cause of action will be stricken. (§ 425.16, subd. (b).) We apply the de novo standard of review. (Park v. Board of Trustees of California State University System (2017) 2 Cal.5th 1057, 1067.)

C. PROTECTED ACTIVITY

1. LAW

An “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any . . . oral statement . . . made before a legislative . . . proceeding, or any other official proceeding authorized by law, (2) any . . . oral statement . . . made in connection with an issue under consideration or review by a legislative . . . body, or any other official proceeding authorized by law, (3) any . . . oral statement . . . made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e).)

“In deciding whether the initial ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits, stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).)” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) “ ‘The mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] . . . In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.’ ” (In re Episcopal Church Cases (2009) 45 Cal.4th 467, 477.)

2. RETALIATION

a. Contention

Borja’s first cause of action is brought under FEHA and alleges he suffered retaliation and a hostile work environment.

b. FEHA

“Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the Department of Fair Employment and Housing (the Department) and must obtain from the Department a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA.” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.) In order for the plaintiff to have exhausted his/her administrative remedies, the issues raised in the court-filed complaint cannot exceed the scope of the issues that were raised in the Department-filed complaint. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 153-154.)

“ ‘ “The administrative exhaustion requirement is satisfied if the allegations of the civil action are within the scope of the [Department] charge, any [Department] investigation actually completed, or any investigation that might reasonably have been expected to grow out of the charge. Thus, the judicial complaint may encompass any discrimination ‘like and reasonably related to’ the allegations of the [Department] charge.” ’ ” (Wills v. Superior Court, supra, 195 Cal.App.4th at pp. 154-155.)

Borja’s Department-filed complaint is attached to his first amended complaint (FAC). In the Department-filed complaint, Borja complained of “retaliation for whistle blowing.” Borja asserted, “I made complaints that the Mayor and Mayor Pro Tem were violating the Brown Act and the city charter. In retaliation for whistle blowing, I was harassed and placed in a hostile work environment. The Mayor and Mayor Pro Tem would tell the city manager to terminate me and the city manager would say no . . . . I am 48 years old. [¶] I received no notice of any closed session hearing that lead [sic] to my termination and I did receive a pre-termination hearing[,] but the person who held the hearing did not have the authority to re-hire me. I requested for [sic] post termination hearing but I have not gotten one to date.”

While Borja includes his age in the Department-filed complaint, he does not allege any age discrimination. Rather, he asserts that he was retaliated against due to being a whistleblower, and his whistleblowing pertained to alleged violations of the City’s charter and the Brown Act. Accordingly, when analyzing the hostile work environment cause of action in the FAC, we focus on the repeated attempts to have Borja’s employment terminated in retaliation for his complaining of violations of the Brown Act and the City’s charter.

FEHA provides, “[I]t is an unlawful employment practice . . . [f]or any 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.” (Gov. Code, § 12940, subd. (h), italics added.) Borja has not alleged that he was retaliated against due to his opposition to discriminatory practices, which are prohibited under FEHA. (Gov. Code, § 12940, subd. (a).) Rather, he has asserted that he was retaliated against for opposing violations of the Brown Act and the City’s charter. We infer that Borja intended to allege a whistleblower/retaliation claim under the Labor Code (Labor Code, § 1102.5, subd. (b))—not under FEHA.

c. Whistleblower

An employee is not required to exhaust his/her administrative remedies with the Labor Commissioner prior to bringing a civil action under Labor Code section 1102.5. (Lab. Code, §§ 244, subd. (a), 98.7, subd. (g).) However, an employee must exhaust any internal administrative remedies, i.e., procedures imposed by the City. (Terris v. County of Santa Barbara (2018) 20 Cal.App.5th 551, 556.) In analyzing the anti-SLAPP issue of protected activity, we are not concerned with whether Borja has exhausted any applicable administrative remedies. Accordingly, we do not delve further into the issues of whether there are internal remedies and whether Borja exhausted them.

We interpret Borja’s first cause of action as alleging a violation of Labor Code section 1102.5, subdivision (b). (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 585 [complaints are broadly construed].) Labor Code section 1102.5, subdivision (b), provides, “An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, . . . 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, regardless of whether disclosing the information is part of the employee’s job duties.”

Thus, in sum, the basis of Borja’s first cause of action is that he was retaliated against for alerting others to alleged violations of the Brown Act and the City charter. The retaliation against Borja allegedly consisted of Kerr and Wright repeatedly telling the city manager to terminate Borja’s employment, making negative comments about Borja, closely watching Borja, and scrutinizing all of Borja’s decisions. Borja is not complaining of budget discussions at a city council meeting, he is complaining of harassment in the form of repeatedly seeking to terminate Borja’s employment in retaliation for his whistleblowing activities.

Our Supreme Court has explained the difference between a lawsuit against public officials that arises from protected speech, and a lawsuit against public officials that does not arise from protected speech: “[I]n Nam v. Regents of University of California (2016) 1 Cal.App.5th 1176, the plaintiff, a University of California Davis medical resident, sued for sexual harassment, discrimination, and wrongful termination. The defendant Regents’ anti-SLAPP motion contended the suit arose from communicated complaints about the plaintiff’s performance, written warnings it issued her, an investigation it conducted, and the written notice to plaintiff of her termination. Not so; the basis for liability was instead the Regents’ alleged retaliatory conduct, including ‘ “subjecting [plaintiff] to increased and disparate scrutiny, soliciting complaints about her from others, removing [her] from the workplace, refusing to permit her to return, refusing to give her credit towards the completion of her residency, failing to honor promises made regarding her treatment, and ultimately terminating her on February 2, 2012.” ’ [Citation.] Nam illustrates that while discrimination may be carried out by means of speech, such as a written notice of termination, and an illicit animus may be evidenced by speech, neither circumstance transforms a discrimination suit to one arising from speech. What gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of a discriminatory or retaliatory consideration.” (Park v. Board of Trustees of California State University, supra, 2 Cal.5th at p. 1066.)

The instant allegations are similar to those in Nam. Borja is not complaining that defendants spoke about the City’s budget. Rather, he is complaining that he was targeted for repeated discussions about terminating his employment and subjected to disparate scrutiny, due to his act of reporting alleged violations of the City’s charter and the Brown Act. Thus, liability is not based upon defendants’ free speech or petitioning; it is based upon their alleged retaliation against Borja in creating a hostile work environment. In sum, the first cause of action does not arise from protected activity.

Defendants contend that, because Borja was a public employee, his job performance and employment status “necessarily are a matter of public interest.” (§ 425.16, subd. (e)(3)&(4).) As explained ante, defendants’ alleged conduct does not consist of statements or conduct in furtherance of the constitutional rights of free speech or petition, i.e., discussing the budget; rather, the alleged conduct concerns retaliation and harassment. Therefore, assuming Borja’s employment status is a topic of public interest, the alleged conduct at issue is not protected as statements or conduct in furtherance of the constitutional rights of free speech or petition made in connection with an issue of public interest. (§ 425.16, subd. (e)(3)&(4).)

3. WRONGFUL TERMINATION

Borja’s wrongful termination causes of action are based upon age discrimination and whistleblower retaliation. Borja is not alleging that his termination was due to defendants’ desire to balance the City’s budget. It is the discrimination and retaliation that are the gravamen of the alleged wrongful conduct. (Wilson v. Cable News Network, Inc. (2016) 6 Cal.App.5th 822, 835.)

Discriminatory employment practices and whistleblower retaliation are rarely, if ever, activities in furtherance of petitioning or free speech. (Bonni v. St. Joseph Health System (2017) 13 Cal.App.5th 851, 864.) As this court has explained, “ ‘[I]f this kind of suit could be considered a SLAPP, then [employers] could discriminate . . . with impunity knowing any subsequent suit for . . . discrimination would be subject to a motion to strike and dismissal.’ ” (Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 625.)

The acts of discriminating against Borja or retaliating against Borja are not alleged to have occurred during city council meetings. (§ 425.16, subd. (e)(1).) Discriminating and retaliating against Borja were not items under consideration by the city council. (§ 425.16, subd. (e)(2).) Discriminating and retaliating against Borja are not alleged to have occurred during a public forum. (§ 425.16, subd. (e)(3).) Discriminating and retaliating against Borja did not advance defendants’ constitutional rights of petition or free speech in connection with a public issue. (§ 425.16, subd. (e)(4).) Accordingly, the gravamen of Borja’s causes of action alleging wrongful termination due to discrimination and retaliation do not arise from protected activity.

Defendants contend Borja’s job was eliminated “along with the positions of 18 other City employees—as a cost saving measure to address the City’s Fiscal Emergency.” The budgetary basis for eliminating Borja’s job is the gravamen of defendants’ defense. It is not the gravamen of Borja’s complaint. (See Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1482-1484 [determine whether the cause of action is based on protected activity].)

In the first step of the anti-SLAPP analysis, “[a] plaintiff’s complaint ultimately defines the contours of the claims.” (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 936.) “Consistent with the primary role of the complaint in identifying the claims at issue, courts have rejected efforts by moving parties to redefine the factual basis for a plaintiff’s claims as described in the complaint to manufacture a ground to argue that the plaintiff’s claims arise from protected conduct.” (Ibid.)

“For example, in Central Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203, the First Appellate District recently affirmed the denial of an anti-SLAPP motion by the operator of a hospital that claimed the plaintiff’s claims were based on protected medical peer review activities. The complaint did not allege facts concerning peer review, and expressly disavowed basing any claims on peer review conduct. The court rejected the defendant’s attempt to construct a peer review claim through facts included in its own declarations. Citing a number of cases that reached similar conclusions, the court explained that ‘ “[t]he question is what is pled—not what is proven.” ’ ” (Bel Air Internet v. Morales, supra, 20 Cal.App.5th at pp. 936-937.)

Borja alleges in his complaint that including his job in the budgetary cuts was a pretext for discriminating or retaliating against him. (Nakai v. Friendship House Assn. of American Indians, Inc. (2017) 15 Cal.App.5th 32, 39 [employee must show employer’s claimed neutral reason was a pretext for discrimination].) At this stage of the proceedings, we cannot conclude that Borja’s job was eliminated purely due to non-discriminatory budget cuts. The gravamens of Borja’s three wrongful termination causes of action are discrimination and retaliation. Those alleged acts are not protected activities.

4. DUE PROCESS

Borja’s due process claims are based upon (1) not being given notice of the closed session meetings in which his name was on the agendas; (2) not having a person authorized to rehire him at the pretermination Skelly[2] hearing; and (3) not being given a posttermination hearing.

The lack of notice, lack of a proper supervisor at the pretermination hearing, and lack of a posttermination hearing constitute omissions. The failures to provide notice, a proper supervisor, and a hearing are not a written or oral statement made before a legislative body because no statement was made; the causes of action concern the failures to provide notice, a posttermination hearing, and a proper supervisor at the pretermination hearing. (§ 425.16, subd. (e)(1).) The failures to provide notice, a posttermination hearing, and a proper supervisor at the pretermination hearing are not a written or oral statement made in connection with an issue under consideration by a legislative body because no statement was made—the allegations concern omissions. (§ 425.16, subd. (e)(2).)

The failures to provide notice, a posttermination hearing, and a proper supervisor at the pretermination hearing are not a written or oral statement made in a place open to the public or in a public forum in connection with an issue of public interest, because the allegations are that no notice, hearing, or proper supervisor were provided. (§ 425.16, subd. (e)(3).) In failing to provide notice of Borja’s rights, failing to provide a proper supervisor at his pretermination hearing, and failing to provide his posttermination hearing, defendants limited Borja’s ability to discuss the issues related to his employment. By limiting Borja’s ability to discuss his employment issues, defendants were not promoting free speech and the right to petition. Therefore, the failures to provide notice, a proper supervisor, and a hearing are not conduct in furtherance of the exercise of the constitutional right to petition or the constitutional right of free speech. (§ 425.16, subd. (e)(4).) In sum, the due process causes of action concerning the failures to provide notice, a proper supervisor, and a posttermination hearing do not arise from protected activity.

D. PROBABILITY OF PREVAILING

Because we have concluded Borja’s causes of action do not arise from protected activity, we do not address the issue of whether Borja has a probability of prevailing on the merits of his claims.[3]

DISPOSITION

The judgment is reversed. Appellant is awarded his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

RAPHAEL

J.