Filed 4/7/15 Gaut v. Fairfield-Suisun Unified School Dist. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


JOAN GAUT et al.,
         Plaintiffs and Appellants,
                                                                     A139848
v.
FAIRFIELD-SUISUN UNIFIED SCHOOL                                      (Solano County
DISTRICT,                                                            Super. Ct. No. FCS 039321)
         Defendants and Appellant.


         This is an employment discrimination case under California’s Fair Employment
and Housing Act (FEHA; Gov. Code, § 12900 et seq.), in which plaintiffs, four teachers,
appeal from a judgment of dismissal following a series of demurrers brought by their
employer, the Fairfield-Suisun Unified School District. We affirm. An unappealed
judgment in an earlier federal case precludes relitigation of plaintiffs’ FEHA harassment
claim, and plaintiffs have not made sufficient allegations of age discrimination or
actionable retaliation for complaining about age discrimination under FEHA.
                                                   BACKGROUND
         In the midst of a heated contract dispute between unionized teachers and their
school district, the district “reconstituted”—that is, transferred to other schools—some 42
teachers, including the four plaintiffs in this case, Joan Gaut, Stephanie Cobb, Kenneth
Manuel, and Joy McAllister. Plaintiffs were outspoken in the contract dispute and claim
the transfers were “a phony stunt, done primarily to demoralize the teachers and dissipate



                                                             1
their willingness to continue their contract dispute.” Plaintiffs further contend they, and
the others, were selected for transfer because they were over 40 years old—“younger,
less experienced teachers with less seniority were not chosen for reconstitution.”
       In December 2009, plaintiffs sued the district and four of its administrators,
Woodraw Carter, Kim Carmichael, Edyie Santomieri, and Gloria Bandy, in the United
States District Court for the Eastern District of California. The complaint in that case
alleged “employment discrimination, retaliation, and harassment” in violation of the
federal Age Discrimination in Employment Act of 1967 (ADEA; 29 U.S.C. § 621 et seq.)
(first cause of action) and California’s FEHA (second cause of action).
       Defendants moved for summary judgment. The federal court found none of the
individual defendants could face ADEA or FEHA liability, citing Miller v. Maxwell’s
International, Inc. (9th Cir. 1993) 991 F.2d 583, 587 (Miller) [term “employer” under
ADEA does not extend to individual employees], Reno v. Baird (1998) 18 Cal.4th 640,
663 (Reno) [supervisors not individually liable under FEHA for discriminatory acts by
others], and Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1164–
1165, 1173 (Jones) [“nonemployer individuals are not personally liable” for retaliation
for complaining about discriminatory acts].)
       Additionally, as to the ADEA claim, the court found no evidence of the “but for”
causation required for a discrimination claim under that statute. (See Gross v. FBL
Financial Services, Inc. (2009) 557 U.S. 167, 176.) It dismissed the ADEA claim as to
both the individual defendants and the district.
       Finally, the district court dismissed, without prejudice, the FEHA claim against the
district, concluding the district was immune from suit in federal court under the Eleventh
Amendment (acknowledging the states’ common law immunity from suit). (See
generally Freeman v. Oakland Unified School Dist. (9th Cir. 1999) 179 F.3d 846, 847.)
The plaintiffs did not appeal from the federal court judgment.



                                               2
       In February 2012, the same four plaintiffs filed the instant law suit in state court
against only the district and solely under the FEHA. Six months later, in August 2012,
plaintiffs filed an amended complaint adding a cause of action on behalf of plaintiff
Manuel, alone, for wrongful discharge.
       The amended complaint, however, was short on specifics, and the district
demurred. The trial court separately considered the three types of FEHA violations
alleged: discrimination, retaliation, and harassment.1 As to age discrimination and
retaliation for complaining about age discrimination, the trial court sustained the
demurrer without leave to amend, on two grounds: (a) res judicata by virtue of the
federal judgment, and (b) the alleged transfers were not adverse employment actions as
required under the Act. As to harassment, the trial court sustained the demurrer with
leave to amend, warning plaintiffs they would need to expand on their “conclusory
assertion” of a “ ‘campaign of hostility and harassment.’ ” The trial court similarly
sustained the demurrer with leave to amend as to the wrongful discharge claim.
       Plaintiffs filed a second amended complaint with additional allegations pertaining
to Manuel—that he was retaliated against because “he wrote a stiff criticism of the
administrative approach of the Defendants,” because of “his vocal advocacy for equal


       1
          Government Code “[s]ection 12940, part of the FEHA, begins, ‘It shall be an
unlawful employment practice, unless based upon a bona fide occupational qualification,
or, except where based upon applicable security regulations established by the United
States or the State of California : . . .’ Several subdivisions follow, defining various
unlawful employment practices. One unlawful employment practice is for an employer
to engage in specified kinds of discrimination. (Subd. (a).) Another, the one involved in
this case, is ‘[f]or any employer, labor organization, employment agency, or person 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.’ (Subd. (h).) This
form of unlawful employment practice is often called simply ‘retaliation.’ [Citation.]
Another unlawful employment practice is harassment. (Subd. (j).)” (Jones, supra,
42 Cal.4th at pp. 1161–1162.)


                                              3
educational opportunities for the students,” and because he protested a review he received
from one of the individual defendants. On one occasion, one of the individual defendants
allegedly referred to Manuel as “old” in the context of the disputes over the union
contract and educational approaches.
       The remaining plaintiffs similarly alleged they were given a hard time by district
administrators because of disagreements over the “cross-tracking” class attendance
policy, the “America’s Choice” school improvement program, class sizes, the value of
music teachers, and the wisdom of the “reconstitution program” (without reference to its
apparent disproportionate effect on older teachers). One of these plaintiffs, McAllister,
alleged she was once referred to by one of the individual defendants as “ ‘old’ in a
derogatory fashion” and was once told “in the past” that “people her age should not be
teaching.”
       The district again demurrered and filed a motion to strike. The trial court
concluded plaintiffs’ expanded allegations were still insufficient to state a FEHA
harassment claim or wrongful discharge claim and sustained the demurrer without leave
to amend, ruled the motion to strike moot, and entered judgment in favor of the district.
       Both plaintiffs and the district appealed from the judgment.2
                                       DISCUSSION
       A demurrer tests a complaint’s sufficiency. (Los Altos El Granada Investors v.
City of Capitola (2006) 139 Cal.App.4th 629, 650.) If a trial court dismisses an action
after sustaining a demurrer without leave to amend, our standard of review is de novo,
and we ask whether the complaint, assuming the truth of its properly pleaded allegations,
states a cause of action as a matter of law. (Ibid.) We “may affirm ‘on any grounds
stated in the demurrer, whether or not the [lower] court acted on that ground.’ [Citation.]


       2
        As we discuss, infra, the district’s purported “cross-appeal” arguing alternative
grounds for affirmance was unnecessary and unduly complicated the appeal.


                                             4
‘ “[I]t is the validity of the court’s action, and not of the reason for its action, which is
reviewable.” ’ ” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 201.)
       When leave to amend has been denied, we ask whether “ ‘there is a reasonable
possibility that the defect can be cured by amendment: if it can be, the trial court has
abused its discretion and we reverse; if not, there has been no abuse of discretion and we
affirm.’ ” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 (Zelig).)
Plaintiffs’ FEHA Harassment Claim Is Barred by Collateral Estoppel
       In furtherance of judicial comity, federal law governs the preclusive effect of
federal court orders. (Nathanson v. Hecker (2002) 99 Cal.App.4th 1158, 1163; Taylor v.
Sturgell (2008) 553 U.S. 880, 891.) “The preclusive effect of a judgment is defined by
claim preclusion and issue preclusion, which are collectively referred to as ‘res
judicata.’ ” (Taylor v. Sturgell, supra, 553 U.S. at p. 892.) With “claim preclusion, a
final judgment forecloses ‘successive litigation of the very same claim, whether or not
relitigation of the claim raises the same issues as the earlier suit.’ [Citation.] Issue
preclusion, in contrast, bars ‘successive litigation of an issue of fact or law actually
litigated and resolved in a valid court determination essential to the prior judgment,’ even
if the issue recurs in the context of a different claim.” (Ibid.) “[T]hese two doctrines
protect against ‘the expense and vexation attending multiple lawsuits, conserv[e] judicial
resources, and foste[r] reliance on judicial action by minimizing the possibility of
inconsistent decisions.’ ” (Ibid.) Where, as here, preclusion hinges on interpretation of
records in court proceedings and there are no disputed material facts, our review is de
novo. (Littlejohn v. United States (9th Cir. 2003) 321 F.3d 915, 919; accord, Roos v. Red
(2005) 130 Cal.App.4th 870, 878.)
       Under the doctrine of issue preclusion, “a party is precluded from relitigating an
issue if four requirements are met: (1) there was a full and fair opportunity to litigate the
issue in the previous action; (2) the issue was actually litigated; (3) there was final
judgment on the merits; and (4) the person against whom [issue preclusion or] collateral

                                               5
estoppel is asserted was a party to or in privity with a party in the previous action.”
(Wolfson v. Brammer (9th Cir. 2010) 616 F.3d 1045, 1064; accord, People v. Garcia
(2006) 39 Cal.4th 1070, 1077 [enumerating similar factors under California law].)
       As noted, the federal court rejected individual liability under both the ADEA and
FEHA. Only employers, not individual employees, face liability under the ADEA or
FEHA for “discrimination” and “retaliation.” (Miller, supra, 991 F.2d at p. 587; Reno,
supra, 18 Cal.4th at p. 663; Jones, supra, 42 Cal.4th at p. 1173.) When it comes to
claims of “harassment,” however, individuals can be liable under FEHA. (Jones, supra,
at pp. 1164–1165.) Thus, for the federal court to have granted summary judgment for the
individual defendants on the harassment prong of the FEHA claim, it implicitly
concluded, as defendants had argued in their summary judgment moving papers, there
was no evidence raising a triable issue of harassment.
       Final judgment was entered against plaintiffs in federal court and in favor of the
individual defendants, and that judgment was on the merits (the Eleventh Amendment
dismissal without prejudice was only as to the district), and plaintiffs did not appeal that
judgment.
       The harassment claim in this action is based on the same alleged actions by the
same individuals sued in the federal case, and concerns the same alleged wrongful school
transfers and the same contract dispute. Plaintiffs are therefore barred from proceeding
on that same claim, now advanced against the district, by the doctrine of collateral
estoppel. And since plaintiffs have alleged no other basis for their harassment claim
against the district, the trial court properly sustained the district’s demurrer to this claim.3




       3
         As we have stated, that the trial court did not sustain the district’s demurrer to
the harassment claim on this ground is immaterial. Indeed, the trial court erred in
rejecting the district’s collateral estoppel defense as to this claim.


                                               6
Plaintiffs Failed to Adequately Allege FEHA Discrimination and Retaliation Claims
       Under FEHA, “an employee seeking recovery on a theory of unlawful
discrimination or retaliation must demonstrate that he or she has been subjected to an
adverse employment action that materially affects the terms, conditions, or privileges of
employment, rather than simply that the employee has been subjected to an adverse
action or treatment that reasonably would deter an employee from engaging in the
protected activity.” (McRae v. Department of Corrections & Rehabilitation (2006)
142 Cal.App.4th 377, 386 (McRae).) Moreover, for a discrimination or retaliation claim
under FEHA, there must be a “causal link . . . between the protected activity and the
employer’s action.” (Ibid.)
       Allegations of transfers to undescribed “other schools” do not adequately allege
adverse employment actions. (McRae, supra, 142 Cal.App.4th at p. 393 [“A transfer can
be an adverse employment action when it results in substantial and tangible harm. A
transfer is not an adverse employment action when it is into a comparable position that
does not result in substantial and tangible harm. [Citations.] A transfer is not an adverse
action simply because the plaintiff finds it to be ‘personally humiliating.’ ”].)
Accordingly, plaintiffs have not sufficiently alleged a requisite adverse employment
action and their FEHA discrimination and retaliation claims based on the “reconstitution”
of the district’s schools fails.
       That leaves only Manuel’s alleged constructive discharge and what plaintiffs term
a “campaign of hostility” as the basis for their claims of age discrimination and retaliation
for complaining about age discrimination. However, even assuming a discharge and an
ongoing course of hostile conduct could be actionable in the appropriate circumstances
(see Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 210), the district’s
actions and supposed campaign, as plaintiffs themselves repeatedly alleged in both their
first and second amended complaints, arose not as the result of discrimination on the
basis of age or retaliation for complaining about age discrimination, but because of

                                              7
heated disagreements over union contracts and school policies. Indeed plaintiffs, in their
opening brief on appeal, admit, parroting their pleadings, that the “campaign of hostility”
was “due to the exercise of their rights to participate in union activities, oppose legal
violations by [the district] . . . , file grievances, and participate in hearings”—age
discrimination or complaining about such discrimination is nowhere mentioned.
       Discrimination or retaliation because of union activities or policy disagreements
are not actionable under FEHA. (McRae, supra, 142 Cal.App.4th at pp. 383, 390; accord,
Negley v. Judicial Council of California (9th Cir. 2011) 458 Fed.Appx. 682, 685 [“Even
assuming [the] . . . provocation efforts amounted to a ‘pattern of antagonism’ that could
constitute an adverse employment action, Negley did not direct the district court’s
attention to any evidence showing that the reason for [the] . . . efforts was to retaliate
against her for engaging in protected activities.”]; Williams v. Holiday Inn (N.D.Cal.
Mar. 13, 1996, No. C-95-0832 MHP) 1996 WL 162992 [FEHA does not “create[] a
private cause of action for individuals aggrieved pursuant to union activity. The suspect
classes protected under the FEHA are limited to race, religion, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex or age.”].)
       In their second amended complaint after the FEHA discrimination and retaliation
claims had already been dismissed without leave to amend, plaintiffs alleged several
vague, isolated “age” comments by one of the individual defendants, Santomieri—he
once allegedly told Manuel he was “old” and once allegedly told McAllister she was
“old” and “people her age should not be teaching.” These comments, however, were not
alleged as part of any cognizable adverse employment action; indeed, no context or
timeframe was alleged. At best, these alleged comments were stray remarks that neither
alone nor taken with other alleged facts tended to show a FEHA violation. (See Harris v.
City of Santa Monica (2013) 56 Cal.4th 203, 231 [“stray remarks that are unconnected to
employment decisionmaking” unactionable]; ibid. [FEHA “does not prohibit
discrimination ‘in the air’ ”]; Horn v. Cushman & Wakefield Western, Inc. (1999)

                                               8
72 Cal.App.4th 798, 810 [“ ‘single, isolated discriminatory comment’ by plaintiff’s
immediate supervisor was insufficient”]; cf. McRae, supra, 142 Cal.App.4th at pp. 386,
392–393 [humiliating comments or being put in an uncomfortable situation with a
coworker is not sufficient; workplace is not “idyllic retreat”].) Further, as we have
recited, plaintiffs repeatedly alleged the motivation for the district’s conduct was not age,
but union and policy disputes.
       Accordingly, the trial court also properly sustained the district’s demurrer to
plaintiffs’ FEHA age discrimination and retaliation claims. And given plaintiffs’
continued inability to articulate an actionable adverse employment action connected to
age discrimination or retaliation for complaining about age discrimination, the trial
court’s denial of leave to amend was also proper. (Zelig, supra, 27 Cal.4th at p. 1126
[burden is on plaintiffs to show reasonable possibility that defect can be cured].)
Plaintiff Manuel Failed to State a Claim for Constructive Discharge
       In the second cause of action, plaintiff Manuel alleged “[a]s a result of the
[alleged] violations of FEHA,” he “suffer[ed] wrongful discharge from his
employment.
       “In order to sustain a claim of wrongful discharge in violation of fundamental
public policy” a plaintiff “must prove that his dismissal violated a policy that is
(1) fundamental, (2) beneficial for the public, and (3) embodied in a statute or
constitutional provision.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238,
1256, fns. omitted.)
       Since Manuel’s FEHA claim fails for the reasons we have discussed above, so
too does “his claim for wrongful termination in violation of public policy.” (Hanson v.
Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229; see also Reno, 18 Cal.4th at p. 663
[“Our conclusion that individual supervisors may not be sued under the FEHA applies
likewise to this cause of action” for wrongful termination.]; accord, Department of



                                              9
Fair Employment & Housing v. Lucent Technologies, Inc. (9th Cir. 2011) 642 F.3d
728, 749.)
The District Improperly Cross-Appealed
       As noted above, the district filed a “cross-appeal” urging an alternative basis for
affirming the judgment of dismissal, namely that even if age discrimination partially
motivated the district’s actions, the district would have made the teacher transfers in
any event for lawful reasons, thus depriving plaintiffs of a monetary remedy. (See
Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 241 [“If the employer proves by
a preponderance of the evidence that it would have made the same decision for lawful
reasons, then the plaintiff cannot be awarded damages, backpay, or an order of
reinstatement.”].)
       However, no cross-appeal is necessary to raise an alternative basis for
affirmance. (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 828
& fn. 61.) Moreover, the district’s prosecution of its purported cross-appeal resulted in
unnecessary, additional briefing and needlessly complicated these proceedings. It also
unfairly gave the district, as respondent, the final brief on appeal, to which it was not
entitled.
       Given our disposition of the plaintiffs’ appeal, the district’s purported cross-appeal
is dismissed as moot.
                                       DISPOSITION
       The judgment is affirmed. Each party to bear its own costs on appeal.




                                             10
                                 _________________________
                                 Banke, J.


We concur:


_________________________
Humes, P. J.


_________________________
Margulies, J.




                            11
