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Barr v. Lakatos11/15/2005
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
INTRODUCTION
Plaintiffs and appellants Brenda Barr (plaintiffs or Barr), Gabriela Kennedy and Renee Luke brought an action against their employer "City of Los Angeles by and through the Department of Water and Power" (City or DWP), and other DWP employees, Peter Lakatos, Albert Magwene (defendant or Magwene) and Michele Nagin (collectively individual defendants) for discrimination, harassment and retaliation. The trial court sustained a demurrer, without leave to amend, as to three causes of action in a Fourth Amended Complaint remaining against the individual defendants. Plaintiffs appealed as to two causes of action, contending that the trial court erred in concluding that individual supervisors cannot be held personally liable for retaliation in violation of Government Code section 12940, subdivision (h), which provision is part of the California Fair Employment and Housing Act (FEHA). All claims were resolved after the appeal was filed, except for the claims of Barr against Magwene.
We hold that a supervisor can be held personally liable for retaliation in violation of FEHA; that Barr has pleaded sufficient facts of an adverse employment action by Magwene; and the claims are not barred by the immunity provisions of section 820.2. Thus, the order sustaining the demurrer of Barr against Magwene is reversed.
FACTUAL BACKGROUND
Plaintiff Barr, in her Fourth Amended Complaint, alleges that she was an employee of DWP and that defendant Magwene was or had been director of Labor Relations for DWP; that the DWP was "permeated with discriminatory animus" against women and African Americans; that as a result, plaintiff suffered discrimination and harassment based on pay, classification, and other employment actions; that plaintiff complained to the defendants, including Magwene about the discrimination and harassment and that defendants, including Magwene, retaliated against plaintiff for her complaints. The individual defendants demurred. The trial court sustained the demurrers on the grounds that " he totality of the allegations . . . do not rise to the level of actionable conduct as a matter of law . . . ." At the hearing on the demurrers, the trial court stated that supervisors are not liable for retaliation. Plaintiffs appealed as to the dismissal of the Fifth and Eighth causes of action for retaliation. All claims were resolved, except Barr's claims against Magwene.
Plaintiff, in her opening brief states, "the only issue raised by this appeal is whether a supervisor can be held personally liable for retaliation in violation of the California Fair Employment Housing Act (FEHA)." Plaintiff adds, however, that she should be granted leave to amend to assert claims of violation of Labor Code section 1102.5, which protects retaliation against employees who report violations of law.
Defendant contends that plaintiff has failed to allege facts sufficient to state her two FEHA retaliation causes of action because she does not allege any adverse employment action sufficient to support a retaliation claim, and that even if there were sufficient allegations of adverse employment actions, individual supervisors cannot be liable personally for the alleged conduct. Defendant also contends he has discretionary immunity under section 820.2. Defendant argues that plaintiff should not be able to amen
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