Filed 7/30/13 Georgopoulos v. County of Alameda 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


ADAMANTIA GEORGOPOULOS,
         Plaintiff and Appellant,
                                                                     A134774
v.
COUNTY OF ALAMEDA,                                                   (Alameda County
                                                                     Super. Ct. No. RG10550574)
         Defendant and Respondent.

         Plaintiff was a legal secretary with the County Counsel’s Office of defendant
County of Alameda (County). The County Counsel’s Office terminated plaintiff’s
employment for improper behavior. After an administrative hearing before the Alameda
County Civil Service Commission (Commission), the Commission upheld the
termination. Plaintiff, who is Caucasian, then sued County claiming the County
Counsel’s Office terminated her employment on the basis of race. The trial court granted
County’s motion for judgment on the pleadings, ruling that plaintiff’s causes of action
were barred by either collateral estoppel or failure to exhaust administrative remedies.
Plaintiff appeals from the subsequent judgment of dismissal and contends the ruling on
County’s motion was erroneous. We disagree and affirm.
                           I. PROCEDURAL BACKGROUND & FACTS
         We take the facts from the administrative proceedings before the Commission.
         On September 2, 2005, plaintiff began her employment with the County Counsel’s
Office as a Civil Legal Secretary. On December 2, 2008, Alameda County Counsel
Richard E. Winnie terminated plaintiff for violation of several subdivisions of Civil
                                                             1
Service Rule 2104: subdivision (g), willful disobedience; subdivision (h),
insubordination; subdivision (j), discourteous treatment of fellow employee; subdivision
(n), dishonesty; and subdivision (q), a failure of good behavior or acts during or outside
of office hours which are incompatible with or inimical to the public service.
       Plaintiff appealed the termination decision to the Commission, which appointed an
administrative law judge (ALJ) to hear the matter. The ALJ conducted a four-day
evidentiary hearing in late May and early July 2009. The County Counsel’s Office called
seven witnesses, including Mr. Winnie, and introduced 52 documentary exhibits.
Plaintiff called six witnesses, including herself, and introduced two documentary
exhibits. On December 3, 2009, the ALJ issued a report and recommendation finding
that plaintiff had not been dishonest or insubordinate, but had engaged in rude and
discourteous behavior on two occasions in violation of Civil Service Rule 2104,
subdivisions (j) and (q).
       Specifically, the ALJ found that on September 4, 2008, plaintiff’s supervisor asked
to speak with her just before the end of the work day. Plaintiff told her supervisor she
needed to get promptly home to care for her elderly father, and referred the supervisor to
plaintiff’s attorney. “The failure of [plaintiff] to have a short meeting with [her
supervisor] was considered insubordination. It was also considered unprofessional and
rude behavior.”1
       The ALJ further found that on October 30, 2008, plaintiff “was discourteous and
disruptive during a staff meeting. She made faces and commented under her breath.”
When County Counsel Winnie called her up to where he was sitting and commented on
her behavior, plaintiff “disrupted the meeting and ‘caused a scene.’ ” Plaintiff “was
found to be disrespectful toward Mr. Winnie. Her behavior was found to constitute
failure of good behavior and insubordination.”2


       1
        Since the ALJ did not find plaintiff was insubordinate, presumably the ALJ
means the County Counsel’s Office found her behavior insubordinate.
       2
           See footnote 1, ante.
                                              2
       The ALJ found “[t]hese events must be viewed in the context of the negative
atmosphere in the office and how this was perceived by” plaintiff, who claimed the
troubles began when she was excluded from a secretarial study group formed for the
Civil Service examination.3 The ALJ found plaintiff “was intentionally excluded from
this group.” After plaintiff complained to her supervisor, she was given some study
material and told she had been “forgotten.” Contrary to plaintiff’s allegation in her
present lawsuit, the study group was not considered inappropriate or illegal because the
secretaries were studying on their own time. And plaintiff scored second place on the
exam, “so there was no negative consequence to her exclusion.”
       The ALJ found the County Counsel’s Office “did not evenly apply its authority in
investigating reports made by employees. Reports of misconduct of others toward
[plaintiff] were not acted on with the same vigor as misconduct reported by others
against” plaintiff. The ALJ further found: “In this case, there is a great deal of blame to
go around. While [plaintiff’s] behavior was not ‘ideal’ the behavior of other coworkers,
supervisors and administration was not ideal either.”
       The ALJ determined the evidence did not show plaintiff was dishonest or
insubordinate. She did determine plaintiff “did engage in ‘mutual’ discourteous
treatment of coworkers and ‘mutual’ failure to [sic] good behavior.” Plaintiff, thus,
violated subdivisions (j) and (q) of Civil Service Rule 2104. The ALJ recommended to
the Commission that discipline was warranted, but that suspension, not termination, was
the appropriate penalty.
       After the ALJ issued her report and recommendation, both parties submitted
written responsive comments to the Commission, which met on February 10, 2010. The
Commission adopted the ALJ’s findings of fact, but determined in its discretion that
termination was the appropriate disposition.



       3
       Plaintiff was hired provisionally and was required to take the exam to become
permanent.

                                               3
       The Commission explained its rationale as follows: “If the two incidents of
discourteous treatment and failure of good behavior described above were only viewed
individually and out of context, they might not be considered serious enough in nature to
warrant termination. But the Commission does not view these incidents in a vacuum.
When viewed in relation to [plaintiff’s] prior discipline record and [plaintiff’s] resistance
to corrective action, the Commission finds that [plaintiff] engaged in a continuing pattern
of unsatisfactory behavior inimical both to the principles of public service and to a
professional workplace environment.”
       The Commission then reviewed the ALJ’s factual findings of plaintiff’s “troubled
work history within the [County Counsel’s Office] prior to the events giving rise to her
termination.” In November 2007, she falsely reported to her supervisor that a coworker
was involved in a dispute with a fellow passenger on BART; plaintiff was suspended for
one week as a result. In July 2008, she was involved in a confrontation with another
coworker over sharing a file system password, and “made an inappropriate comment.”
She was suspended for two weeks and the suspension was upheld by the Commission on
appeal.
       The Commission noted the ALJ had found that there was a “negative atmosphere
in the office,” and a perception of unequal treatment, but concluded these factual findings
did not mitigate plaintiff’s conduct: “These findings of fact do not absolve [plaintiff]
from her duty to act responsibly and in a professional manner.”
       The Commission went on to review plaintiff’s resistance to efforts by the County
Counsel’s Office to rehabilitate her workplace conduct. After “an incident in April
2007,” which the ALJ described as “a negative encounter at the printer” with another
legal secretary, plaintiff was sent to a class on how to deal with difficult employees. In
March 2008, the County Counsel’s Office brought in an outside firm to provide
“coaching, training and organizational development” for staff members. The firm
provided one-on-one coaching, to which plaintiff was initially open; she then refused the



                                              4
coaching and “terminat[ed] the meeting indicating that she was pursuing her options
through legal channels.”
       “[Plaintiff’s] treatment of her supervisor on September 4, 2008 . . . and her very
public misbehavior in the October 30, 2008 staff meeting . . . demonstrate her continuing
failure to act professionally in the face of her workplace concerns. Taken together with
[plaintiff’s] history of prior discipline, the Commission finds [plaintiff’s] resistance in
this regard to be significant because it further demonstrates that discipline did not
accomplish its corrective, rehabilitative function” for plaintiff.
       The Commission noted it had discretion to determine the appropriate discipline
based on the ALJ’s findings of fact, and concluded it was “convinced . . . further
discipline short of termination will not serve a corrective, rehabilitative function.” The
Commission upheld the County Counsel’s termination decision because “termination,
rather than suspension, is the appropriate penalty and is in the best interest of public
service [fn. omitted].”
       As noted, the Commission issued its decision on February 10, 2010. On May 7,
2010, plaintiff challenged the decision by a petition for writ of administrative mandate
filed in superior court, naming the Commission as respondent and the County Counsel’s
Office as real party in interest. On December 7, 2010, the Alameda County Superior
Court (Honorable Frank M. Roesch, Judge) denied the petition on the ground the
Commission did not abuse its discretion in terminating plaintiff.
       Meanwhile, on December 14, 2009―after the ALJ’s report and recommendation
of December 3, 2009, but months before the Commission’s decision―plaintiff submitted
a complaint of discrimination under the California Fair Employment and Housing Act
(FEHA) (Gov. Code, § 12940 et seq.) with the California Department of Fair
Employment and Housing (DFEH).4 The one-page form, which plaintiff filled out by
hand, claimed the County Counsel’s Office terminated plaintiff because of “race/color”

       4
       Plaintiff dated the complaint December 10, 2009, but DFEH stamped it
“Received” on December 14, 2009.

                                              5
and “retaliation for engaging in protected activity or requesting a protected leave or
accommodation.” (This is the language of the form, which lists various reasons for
employer conduct. Plaintiff placed an “x” next to the two reasons quoted.) In the space
allowed for stating reasons for the discrimination, plaintiff wrote:
       “Group of African-American women, plus one Hispanic, formed a study group (an
illegal study group for the Civil exams, Legal Secretary[).] When I reported the matter,
they retaliated & discriminated aga[inst] me until I was terminated . . . .”5
       The same day it received the complaint, December 14, 2009, DFEH issued
plaintiff a right-to-sue notice and closed the case. The notice advised plaintiff she had to
file suit within one year.
       Almost a year later, on December 9, 2010―10 months after the Commission’s
decision and two days after denial of the petition for writ of administrative
mandate―plaintiff filed the complaint which is the subject of the present appeal. The
complaint includes factual allegations about the purportedly illegal study group and
various instances involving coworkers, almost all of which were a part of the ALJ’s
factual findings and most of which were mentioned by the Commission in reviewing
plaintiff’s history of discipline.6 Plaintiff alleged the County Counsel and some of his
employees made her work conditions intolerable by searching for “seemingly minor
offenses to report,” refusing to investigate her claims of mistreatment, “subjecting her to
trumped-up allegations leading to unjust discipline,” and made her employment
environment “hostile on account of race,” all with an eye to set her up for termination.


       5
        The end of two lines of text is slightly cut off on the Xerox copy of the complaint
we have in the record. The bracketed material is supplied as the only possible
punctuation and wording.
       6
         The complaint includes allegations concerning the April 2007 printer incident,
the November 2007 BART incident, the password incident, and the staff meeting. It also
alleges information regarding two other incidents in July or August 2008, both of which
were the subject of the ALJ’s factual findings although not mentioned by the
Commission.

                                              6
Plaintiff also alleges “defendant County’s reasons for its mistreatment of plaintiff were
pretextual and were done as a part of defendant County’s pattern and practice of
discriminating against white females who were equally, or better, qualified than their
African-American female counterparts.”7
       The complaint alleged termination based on racial discrimination (Gov. Code,
§§ 129000 et seq.) (first cause of action); race-based sexual harassment (second cause of
action); retaliation (third cause of action); failure to prevent or investigate harassment and
discrimination (Gov. Code, § 12940, subd. (k)) (fourth cause of action); and wrongful
termination in violation of public policy (fifth cause of action). The complaint [hereafter
“FEHA complaint”] alleged it has been brought under FEHA and names the County as
defendant, noting the County Counsel’s Office is a County agency.
       County answered and then moved for judgment on the pleadings. County argued
the first and third causes of action were barred by collateral estoppel because their factual
allegations concerning the justification of plaintiff’s termination were identical to those
raised and determined in the administrative proceeding. County further argued the
second and fourth causes of action were barred by failure to exhaust administrative
remedies because plaintiff’s complaint to DFEH did not specifically allege harassment or
County’s failure to investigate or prevent harassment or discrimination.
       After briefing and oral argument, the trial court granted County’s motion for
judgment on the pleadings without leave to amend and entered a judgment of dismissal.8




       7
        Curiously, in several paragraphs of the complaint, plaintiff alleges her
mistreatment was due to “personal animus,” her retention of counsel, or her complaints
about the allegedly illegal study group. These are not race-related motivations.
       8
         The trial court granted judgment on the pleadings with respect to all five causes
of action, but the fifth cause of action is not at issue on appeal. The trial court correctly
granted judgment on the pleadings as to that cause of action because a claim for wrongful
termination cannot be asserted against a public entity. (See Miklosy v. Regents of
University of California (2008) 44 Cal.4th 876, 899–900.)

                                              7
                                     II. DISCUSSION
       “Review of an order granting a motion for judgment on the pleadings is governed
by the same standard applicable to reviewing an order sustaining a general demurrer: We
ordinarily examine only the face of the pleadings, together with matters subject to judicial
notice, to determine whether such facts are sufficient to constitute a cause of action.
[Citation.]” (O’Neil v. General Security Corp. (1992) 4 Cal.App.4th 587, 594, fn. 1.) In
this case, we review the pleadings and the matters judicially noticed by the trial court to
determine the legal issues of the applicability of collateral estoppel and failure to exhaust
administrative remedies to the first through the fourth causes of action.9
       Collateral estoppel, also known as issue preclusion, prevents “relitigation of issues
argued and decided in prior proceedings.” (Lucido v. Superior Court (1990) 51 Cal.3d
335, 341.) The requirements for collateral estoppel are: the issue is identical to the issue
decided in the former proceeding; the former proceeding actually and necessarily decided
the issue; the decision in the former proceeding was on the merits and is final; and the
person against whom the doctrine is asserted was party to, or in privity with a party to,
the former proceeding. (Ibid.) Collateral estoppel is not limited to judicial proceedings,
but can bar relitigation of issues decided in an administrative hearing by an agency acting
in a judicial capacity. (Knickbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 242.)
       Plaintiff correctly notes that an administrative decision will not collaterally estop a
subsequent FEHA action unless the decision completely eliminates a required element of
the employee’s FEHA action. (See George v. California Unemployment Ins. Appeals Bd.
(2009) 179 Cal.App.4th 1475, 1486 (George).) She contends the first and third causes of
action (racial discrimination and retaliation) are not barred by collateral estoppel because
the Commission’s decision did not completely eliminate any required element of her
racial discrimination claims. She argues the Commission only determined she was


       9
        At the parties’ request, the trial court took judicial notice of the record of the
administrative proceedings, the documents filed in the mandate proceeding, and the
DFEH complaint.

                                               8
terminated for violations of the Civil Service Rule, but did not determine the validity of
her FEHA-cognizable claim of race-based disparate treatment, i.e., that plaintiff was
treated more harshly than were other employees of a different race who committed
similar misconduct. (See, e.g., Jones v. Bessemer Carraway Medical Center (11th Cir.
1998) 137 F.3d 1306, 1311, fn. 6, rehg. den. and opn. superseded on other grounds in
Jones v. Bessemer Carraway Medical Center (11th Cir. 1998) 151 F.3d 1321; Jones v.
Gerwens (11th Cir. 1989) 874 F.2d 1534, 1540.)
       However, a close reading of plaintiff’s complaint does not reveal any explicit
allegations of disparate treatment or unpunished misconduct of other employees of the
magnitude committed by plaintiff which led to her termination. Plaintiff alleges
coworkers were discourteous to her―but plaintiff was terminated for being discourteous
to a supervisor and for disrupting a staff meeting at which Mr. Winnie was present, and
presumably presiding, and for being disrespectful to Mr. Winnie. This is much more
serious behavior than the coworker behavior alleged by plaintiff.
       We are thus left with the question whether plaintiff was terminated for violation of
workplace rules. The administrative proceedings before the Commission show that she
was, and collaterally estop plaintiff’s first and third cause of action.
       Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477 (Castillo), on which the
trial court relied, is instructive. In that case, a municipal employee was terminated for
tardiness and unauthorized absences. (Castillo, supra, at p. 479.) He unsuccessfully
challenged his termination at an administrative hearing, at which he presented evidence
showing his attendance was satisfactory. (Id. at pp. 479, 482.) He also presented some
evidence of disparate treatment, but did not argue the discrimination was based on age,
race, or national origin―factors which formed the basis of his subsequent FEHA action
against the City of Los Angeles. (Id. at pp. 480, 482.) The trial court granted the City
summary judgment on the ground the administrative proceedings collaterally estopped
the FEHA action. (Id. at p. 481.)



                                               9
       The administrative hearing officer found Castillo’s attendance was unsatisfactory
and that his termination was appropriate. (Castillo, supra, 92 Cal.App.4th at p. 481.)
The Castillo court concluded these findings collaterally estopped the issues raised in the
FEHA action. “The issue, wrongfulness of the discharge, is identical in the
administrative proceeding and this suit.” (Castillo, supra, at p. 481.) The wrongfulness
of Castillo’s termination was actually litigated in the administrative proceedings. (Id. at
p. 482.) And, while discrimination due to age, race or national origin was not raised at
the administrative hearing, the issue of improper discrimination was necessarily decided:
“The hearing examiner necessarily decided that Castillo’s discharge was for proper
reasons when she found the discharge ‘appropriate.’ Further, if the hearing examiner
were to have found that the reasons for discharge were merely a pretext for
discrimination, she would not have found the discharge was appropriate.” (Ibid.)10
       In the present case, while recommending suspension rather than termination, the
ALJ found plaintiff’s behavior violated workplace rules and warranted discipline―the
ALJ did not find the sought after discipline was a pretext for discrimination. And, based
on the facts before the ALJ, the Commission properly exercised its discretion to terminate
plaintiff. The issues surrounding her workplace behavior and subsequent discipline are
identical to those raised in the FEHA complaint and were actually and necessarily
decided in the administrative proceedings. Since plaintiff was a party to these
proceedings and they are now final, collateral estoppel applies to bar the first and third
causes of action.11


       10
        The recent decision of Basurto v. Imperial Irrigation Dist. (2012) 211
Cal.App.4th 866, 887–889, is in accord with Castillo.
       11
          The George case did not apply collateral estoppel to preclude all the allegations
of a lawsuit. (George, supra, 179 Cal.App.4th at pp. 1486–1488.) But the case is
distinguishable because the plaintiff alleged a pattern of mistreatment and the
administrative agency found that much of that mistreatment was unjustified―indeed, it
set aside one suspension and found much of the bases for a second and third was
unfounded―leaving undecided any question of discriminatory animus.

                                             10
       Plaintiff also contends the second and fourth causes of action (race-based sexual
harassment and failure to investigate or prevent harassment and discrimination) are not
barred by failure to exhaust administrative remedies because the acts alleged are
encompassed by her DFEH complaint. We requote that complaint:
       “Group of African-American women, plus one Hispanic, formed a study group (an
illegal study group for the Civil exams, Legal Secretary[).] When I reported the matter,
they retaliated & discriminated aga[inst] me until I was terminated . . . .”
       The primary test for exhaustion in this context is whether the FEHA allegations
are like or reasonably related to the employee’s DFEH complaint. (See Okoli v.
Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1614; Oubichon v.
North American Rockwell Corporation (9th Cir. 1973) 482 F.2d 569, 571.) The DFEH
complaint’s allegations of retaliation and discrimination are distinct from the FEHA
complaint’s allegations of harassment and the failure to prevent harassment.
Discrimination involves official action taken by an employer, while harassment focuses
on the social environment and interpersonal relations in the workplace. (Roby v.
McKesson Corp. (2009) 47 Cal.4th 686, 706–707.) Plaintiff’s DFEH complaint does not
mention harassment or the failure to prevent harassment, and thus she has not exhausted
her administrative remedies with regard to those claims. To the extent her FEHA
complaint alleges in the fourth cause of action the failure to prevent discrimination, she
did not provide sufficient facts in her DFEH complaint to show the County failed to take
action. Moreover, her brief, conclusory statement of facts ambiguously refers to “they”
as the actors who discriminated and retaliated―grammatically, “they” could refer to the
women in the study group, not plaintiff’s employer or supervisors.12



       12
          Plaintiff’s reliance on Baker v. Children’s Hospital Medical Center (1989) 209
Cal.App.3d 1057 (Baker) is misplaced. In Baker the court found the FEHA complaint’s
allegations of subsequent harassment, differential treatment, retaliation for filing a
grievance, and racial discrimination were encompassed by the DFEH complaint’s
original allegation of racial discrimination. (Baker, supra, at pp. 1060–1061, 1065.)
                                             11
       Plaintiff also relies on an alternative test for exhaustion: whether her causes of
action in the FEHA complaint would have been reasonably expected to fall within the
scope of a reasonable DFEH investigation of her DFEH complaint. (See Nazir v. United
Airlines, Inc. (2009) 178 Cal.App.4th 243, 266–267.) But since discrimination is distinct
from harassment, any such investigation would not have focused on the latter―especially
since plaintiff’s DFEH complaint was factually limited to the study group and
encompassed no other workplace behavior.
                                   III. DISPOSITION
       The judgment of dismissal is affirmed.



                                                  ______________________
                                                   Sepulveda, J.*


We concur:


______________________
 Dondero, Acting P.J.

______________________
 Banke, J.




* Retired Associate Justice of the Court of Appeal, First Appellate District, Division
Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.



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