Opinion
A163633
02-08-2023
VELTILENA NEWBOLT-BROWN, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF STATE HOSPITALS, Defendant and Respondent.
NOT TO BE PUBLISHED
(Napa County Super. Ct. No. 19CV000631)
GOLDMAN, J.
Veltilena Newbolt-Brown (Brown) was disciplined by her employer, California Department of State Hospitals (DSH), with a temporary salary reduction, and was later terminated. She unsuccessfully challenged the salary reduction and termination in separate administrative proceedings before the State Personnel Board (SPB) and did not seek judicial review of those adjudications. She now sues DSH under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) for retaliation, raced-based harassment, and failure to prevent harassment. Her first amended complaint (FAC) also asserts a claim under the California Whistleblower Protection Act (§ 8547 et seq.). Applying the doctrine of collateral estoppel, the trial court sustained DSH's demurrer without leave to amend, finding that the SPB adjudications eliminated any question regarding the wrongfulness of her discipline and termination and, thus, conclusively negated an essential element of her FEHA claims. It further found that her whistleblower claim was barred by her failure to exhaust administrative remedies, and that she failed adequately to explain how she could amend any of her claims to cure the defects.
Appellant refers to herself as "Brown" rather than "Newbolt-Brown" in her briefs, so we do the same here.
All further statutory references are to the Government Code, unless otherwise indicated.
Although Brown challenges every aspect of the trial court's ruling, her principal argument on appeal is that collateral estoppel does not apply because her FEHA claims do not solely concern the salary reduction and termination, but include issues that are distinct from those adjudicated by the SPB. We conclude, however, that the additional issues Brown identifies are not meaningfully distinguishable from those the SPB considered, with the exception of two events that occurred much earlier and are now unactionable because they are outside the statute of limitations. We also conclude that the trial court correctly determined that Brown's whistleblower claim was barred by her failure to exhaust administrative remedies. We will therefore affirm the judgment.
BACKGROUND
A. Allegations in the First Amended Complaint
Brown, an African-American woman, began working as a licensed psychiatric technician at Napa State Hospital in 2014. She commenced this lawsuit in April 2019, and filed the FAC in March 2021. It alleges four causes of action against DSH: (1) retaliation (§ 12940, subd. (h)); (2) race-based harassment (§ 12940, subd. (j)); (3) failure to prevent harassment and discrimination (§ 12940, subd. (k)); and (4) a Whistleblower Protection Act claim for retaliation (§ 8547.8).
The FAC contains a section entitled "General Allegations" that describes various incidents between 2015 and 2018. While we summarize all of these allegations, we note that the later sections of the FAC pleading the individual causes of action refer only to events that occurred in 2018.
i. Alleged Incidents from 2015 to 2017
The FAC alleges that in February 2015, Brown heard a coworker use a racist term with a patient. After reporting the incident to her immediate supervisor, Brown was told "Welcome to Napa State Hospital" and was instructed to report the incident to the nursing coordinator, which she did. About a month later, the same coworker who used the racist term stated in Brown's presence that "Napa" stands for "No African People Allowed."
In early March 2015 (or 2016), Brown was disciplined by the nursing supervisor, who is Caucasian, for cell phone use. Brown believed that this discipline was pretextual and that it was retaliation for reporting her coworker's racist comments. In the next few weeks, the nursing coordinator disciplined Brown for not responding to a patient alarm even though she had a documented knee injury that prevented her quick response to the alarm, and in April 2016 moved Brown from her nursing position to filing paperwork in the forensic department. Brown believed the nursing coordinator was discriminating against her because of her race, and on the same day she was moved, she filed a complaint of racial discrimination with the Equal Employment Opportunity Commission (EEOC) office in Oakland, and a few weeks later filed an internal EEOC complaint of discrimination with DSH concerning the nursing coordinator's allegedly racist behavior. About a month after filing the EEOC complaints, Brown was moved from the forensic department to a position in the main kitchen that required no nursing work.
The FAC alleges that it was March 2015, but the events the FAC then describes as occurring in the following weeks have dates in April 2016.
In September 2016, after overcoming a brief injury sustained while working in the main kitchen, Brown returned to nursing in a new unit. In November 2016, she wrote a memo to her supervisor about missing medication during the morning shift, and about a lack of licensed staff signatures on the narcotic count sheet for both incoming and outgoing shifts. Two days later, Brown was disciplined for "misconduct" for an unknown reason; the FAC does not allege the nature of the discipline, but Brown believed it was in retaliation for her memo about the missing medication. About a week later, Brown sent a second memo to her supervisor about continued missing medication and staff signatures on the narcotic count sheet. The next month, she reported to hospital police that her personal phone number was provided to a male patient who began calling her at home, but nothing was done about it.
On December 30, 2016, Brown was written up twice, once for a missing name badge and a second time for allegedly taking an extended break, and the next day was written up again for allegedly using her cell phone on speaker mode in front of patients. She believed these write-ups were in retaliation for her complaints about the missing medication and for her complaint about her compromised phone number.
Brown alleges that in January 2017 she received an unfair job performance appraisal despite her exceptional job performance and the fact that she was one of the most experienced staff members. The following month, her request for a pay increase was denied even though she met the educational requirements for the increase. She renewed her request in May 2017 and it was again denied without explanation. The previous month-on April 4, 2017-Brown had received a notice of adverse action that reduced her pay by five percent for six months.
Between May and November 2017, Brown was on leave for a work-related injury. On the day she returned to work she was "again disciplined without reason" and was then transferred to yet another unit.
ii. Alleged Incidents in 2018
Around February 6, 2018, Brown complained to her unit supervisor about "rude, abrasive, and hateful behavior" toward her by her shift lead, Olive Fernando. Fernando did not treat any other employees, who are not African-American, in this manner, and Brown believed this mistreatment was because of her race.
On February 26, 2018, Brown wrote a complaint of discrimination against Ryan Daley, a psychiatric technician working on her unit, because he refused to timely relieve Brown from her shift, spoke rudely towards her, and was unprofessional. Daley's supervisor, who was present for some of the conduct, did nothing to correct his behavior.
On March 2, 2018, Brown was written up by Daley's supervisor for allegedly using her cell phone while on duty. She believed this reprimand was in retaliation for filing the complaint against Daley, who was friends with his supervisor.
On March 6, 2018, Brown complained that several employees-who were not African-American and who Brown believed were receiving preferential treatment because of their race-were falsifying their time records. In the same month, she refused to falsify reasons to restrain patients, a practice she alleges DSH employees called "creative writing." The FAC alleges that, after refusing to engage in the practice, Brown was "ostracized even further and was reassigned from her position."
On April 17, 2018, Brown was disciplined for allegedly talking on her cell phone. She believed she was reprimanded in retaliation for reporting the discriminatory conduct by Daley, especially because other employees who were not African-American were not being disciplined for similar or worse acts, including falsifying time records. Brown further "believed that several staff members of the same race (Filipino) got together to 'gang up' on her and write a false report of her talking on her cell phone in order to get her in trouble with management." She was "constantly reminde[d] by her Filipino coworkers that the Filipino staff were 'greater in numbers' than African-American staff." Brown "understood these remarks to mean that Filipino staff members have more privileges than the African-American staff and that they can get rid of [her] whenever they wanted by sticking together and fabricating lies."
On April 19, 2018, Brown was removed from her home unit and reassigned without explanation to the volunteer center. She believed this move was further retaliation for her discrimination complaint against Daley.
On June 21, 2018, Brown was terminated from her position at the hospital. She filed a complaint alleging retaliation and harassment with the California Department of Fair Employment and Housing (DFEH) on December 28, 2018, and received a right-to-sue letter the same day.
B. Administrative Proceedings Before the SPB
In 2017, Brown appealed to the SPB the notice of adverse action temporarily reducing her salary. DSH imposed the reduction based on Brown's alleged failures to follow essential safety procedures, dishonesty, and insubordinate, hostile, and threatening statements toward her coworkers and managers. The SPB conducted a two-day evidentiary hearing, with several staff members testifying in support of the charges. Brown denied any wrongdoing and "claimed that testimony to the contrary was fabricated because the opposing witnesses" were friends and relatives. The SPB sustained the salary reduction, finding that DSH had established that Brown failed to properly secure medication in compliance with DSH's procedures, acted in a hostile way toward her coworkers, failed to respond to alarms when a patient attacked a coworker; the SPB also noted that she failed to accept responsibility for her actions. It rejected Brown's allegations that her coworkers "conspired to fabricate the charges against her" and that "she was treated unfairly at work because she did not belong to a clique of employees who look out for each other." It stated that, despite her "emphatic testimony, she did not offer any reliable evidence that she was treated unequally."
The trial court took judicial notice of the SPB decisions, from which this information is drawn.
In June 2018, Brown appealed the second notice of adverse action, this one terminating her employment based on alleged refusals to give medication to patients and to perform shift duties as instructed; treating supervisors, coworkers, and patients discourteously; failing to monitor high-risk patients adequately; and failing to comply with policies regarding work breaks. After another two-day evidentiary hearing, in November 2018 the SPB sustained the termination on charges of inefficiency, inexcusable neglect of duty, insubordination, discourteous treatment, and other failure of good behavior. It found Brown's testimony "wholly unconvincing," evasive, and rambling, noting that at times she "raised her voice, became argumentative, and interrupted the proceedings." It rejected her claims that her coworkers had conspired to falsely accuse her of misconduct, finding no corroboration for her denials. Among other things, the SPB found that she used her cell phone in violation of hospital regulations, refused orders and argued with supervisors, failed to administer medication and to monitor patients, and was rude with her coworkers. It found that her misconduct could have led to the injury or death of patients or staff, and that she was highly likely to repeat her misconduct.
C. DSH's Demurrer and the Trial Court's Ruling
DSH demurred to the FAC, arguing that the SPB adjudications barred Brown's FEHA claims under the doctrines of res judicata and collateral estoppel, and that her Whistleblower Act Protection claim was barred by her failure to exhaust administrative remedies. The trial court sustained the demurrer to the FEHA claims on collateral estoppel grounds, concluding that the SPB adjudications "eliminated any question regarding the wrongfulness" of the discipline imposed on her, and thereby prevented Brown from establishing a necessary element of her claims. It also agreed that, because Brown failed to file her Whistleblower Protection Act complaint with the SPB, her fourth cause of action was barred for failure to exhaust administrative remedies. This appeal followed.
DISCUSSION
A. Standard of Review and Applicable Law
When reviewing an order sustaining a demurrer, we independently determine whether the facts alleged in the complaint are sufficient to state a cause of action. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) "If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer." (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) At this stage in the proceedings, "[w]hether the plaintiff will ultimately be able to prove the complaint's allegations is not relevant." (Rufini v. CitiMortgage, Inc. (2014) 227 Cal.App.4th 299, 304.)
B. Res Judicata / Collateral Estoppel-FEHA Claims
Brown did not seek writ review of either of the SPB adjudications. The doctrine of exhaustion of judicial remedies provides that the failure to obtain judicial review of an administrative decision by a timely petition for administrative mandamus may render the administrative order immune from collateral attack under the principles of res judicata. (Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 243.) Broadly speaking, res judicata addresses the preclusive effect of prior judgments. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823.) Courts have sometimes used "res judicata" as "an umbrella term encompassing both claim preclusion and issue preclusion," which has been described as two separate aspects of an overarching doctrine. (Ibid.) "Claim preclusion, the '" 'primary aspect'"' of res judicata, acts to bar claims that were, or should have been, advanced in a previous suit involving the same parties. [Citation.] Issue preclusion, the '" 'secondary aspect'"' historically called collateral estoppel, describes the bar on relitigating issues that were argued and decided in the first suit." (Id. at p. 824.) "Claim preclusion arises if a second suit involves (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit." (Ibid.) By contrast, "issue preclusion applies (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party." (Id. at p. 825.) Here, the parties do not dispute that the administrative proceedings constitute a final judgment or adjudication for the purposes of these doctrines, nor that the same parties were involved in them. "Whether the doctrine of res judicata applies in a particular case is a question of law which we review de novo." (City of Oakland v. Oakland Police &Fire Retirement System (2014) 224 Cal.App.4th 210, 228.)
FEHA "affords California employees broad protection against discrimination, harassment, and retaliation on any of a wide range of impermissible bases." (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 106, fn. omitted.) Brown's FEHA claims are for retaliation, race-based harassment, and failure to prevent retaliation and harassment. Because the third claim depends on the validity of the former two, we need not analyze it separately.
At the outset, we note that the parties disagree about what actions by DSH Brown's FEHA claims are challenging. The trial court construed the FAC to challenge Brown's salary reduction and later termination, and DSH frames its argument that way on appeal. Brown, however, disputes that characterization, arguing that, while her FEHA claims may include those issues, she challenges some events and disciplinary actions that were not at issue in the administrative proceedings.
To the extent Brown's FEHA claims challenge either her salary reduction or her termination, we agree with DSH that collateral estoppel (i.e., issue preclusion) applies to bar them. The issue litigated and necessarily decided in the SBP proceedings was whether the discipline imposed on Brown was appropriate; she cannot relitigate that issue here.
For example, in Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, a municipal employee was terminated for tardiness and unauthorized absences. (Id. at p. 479.) He unsuccessfully challenged his termination at an administrative hearing, at which he presented evidence showing that his attendance was satisfactory. (Id. at pp. 479, 482.) He also presented some evidence of disparate treatment, but did not argue that the discrimination was based on age, race, or national origin-factors which formed the basis of his subsequent FEHA action. (Id. at pp. 479-480, 482.) The court upheld the trial court's grant of summary judgment for the employer, concluding that the administrative forum resolved the issue of whether the employer's stated reason for discharge was pretextual. (Id. at p. 483.) Since the employee in Castillo could not prove wrongfulness of discharge, an element of a FEHA claim of discrimination, the employer was entitled to judgment as a matter of law. (Id. at pp. 486-487.)
Upon finding that the threshold requirements for collateral estoppel are satisfied, courts also evaluate whether it should be applied in a particular situation by considering the public policies underlying the doctrine- "preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 343.) We think application of the doctrine is warranted here for the same reasons articulated in Castillo: To allow Brown to relitigate the same issue would "diminish the value of the administrative process that concluded that [her] discharge was proper," encourage repetitive litigation, and subject the state to baseless or unjustified litigation after Brown had an adequate opportunity in the administrative proceeding to prove that her discharge was wrongful. (Castillo v. City of Los Angeles, supra, 92 Cal.App.4th at pp. 483-484.)
Similarly, in Wassman v. South Orange County Community College Dist. (2018) 24 Cal.App.5th 825 (Wassman), the plaintiff unsuccessfully challenged her dismissal in administrative proceedings, and later brought FEHA claims for harassment and for discrimination based on race and age. (Id. at p. 843.) The court concluded that she could not challenge her dismissal through her FEHA claims because she could have raised her claims of racial discrimination, age discrimination, and harassment as grounds for finding a lack of cause to dismiss her. (Id. at p. 847; Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 76 ["We conclude that when, as here, a public employee pursues administrative civil service remedies, receives an adverse finding, and fails to have the finding set aside through judicial review procedures, the adverse finding is binding on discrimination claims under the FEHA."]; Basurto v. Imperial Irrigation Dist. (2012) 211 Cal.App.4th 866, 888 [plaintiff who unsuccessfully challenged his discharge in administrative proceedings was collaterally estopped from litigating FEHA claims for age and/or race discrimination notwithstanding his failure to raise those allegations at his administrative hearing]; Miller v. City of Los Angeles (2008) 169 Cal.App.4th 1373, 1379, 1383 [plaintiff was collaterally estopped from arguing that his termination was wrongful, defeating claims related to racial discrimination, harassment, retaliation, and failure to correct]; Oquendo v. California Institution for Women (1989) 212 Cal.App.3d 520, 522 [plaintiff could not relitigate reasonable accommodation under FEHA after having tried that issue before the SPB].) The same reasoning applies here.
Brown resists this conclusion by pointing to George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475 (George). There, a civil service employee who was suspended without pay for brief periods on three occasions appealed her suspensions to the SPB, contending that the instances of alleged misconduct did not occur or did not warrant discipline, but not that the suspensions were retaliatory. (Id. at p. 1480.) In those proceedings, the SPB found that the first suspension was not supported by the evidence, and that the second and third were supported only in part by the evidence and were therefore excessive in duration. (Id. at p. 1481.) Because the SPB revoked the first suspension in its entirety and found that the other two were based in part on allegations that were without substance, the court concluded that the SPB's findings were not equivalent to a finding that the discipline imposed was "just, proper, and nonretaliatory." (Id. at p. 1488.) Here, by contrast, the SPB upheld Brown's salary reduction and termination on abundant evidence, which precludes her from establishing in this action that it was the result of a retaliatory or discriminatory motive.
In her reply brief, Brown contends that her first cause of action is not limited to the discipline at issue in the administrative proceedings, but offers no argument that she is entitled to challenge her salary reduction and termination as retaliatory. She also acknowledges that her second cause of action might be barred under Castillo if it were based on the claim that her pay reduction or termination were racially motivated.
Having concluded that Brown's FEHA claims are barred insofar as they challenge her salary reduction and termination, we now consider whether those claims are saved by Brown's argument that they also challenge matters other than the discipline at issue in the administrative proceedings. We first review the substance of these claims insofar as Brown contends they involve issues that are distinct from the salary reduction or termination.
To state a prima facie claim of retaliation under FEHA, a plaintiff must plead that "(1) he or she engaged in a 'protected activity,' (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) In the section pleading the retaliation claim, the FAC alleges that Brown engaged in protected activity twice in February 2018, when she (1) complained to her unit supervisor about Fernando's behavior toward her, which she believed was because of her race; and (2) wrote a complaint of discrimination against Daley for refusing to relieve her from her shift on time, speaking rudely toward her, and being unprofessional, all of which she also believed was because of her race. She alleges that the following adverse actions were in retaliation for those complaints: (1) on March 6, 2018, the unit supervisor, who was a friend of Daley's, falsely wrote her up for using her cell phone while on duty; (2) on April 17, 2018, she was again disciplined for talking on her cell phone, while non-African-American employees were not disciplined for similar or worse acts; and (3) she was removed from her unit and reassigned without explanation to the volunteer center.
In her appellate briefs, Brown also points to allegations that (1) on March 6, 2018 she complained that several non-African-American employees were falsifying their time records, and (2) in the same month, she refused to engage in "creative writing." The "General Allegations" section of the FAC alleges that, after refusing to engage in the practice, she was "ostracized even further and was reassigned from her position." But within the retaliation cause of action itself, the FAC alleges that Brown believed the reassignment was in retaliation for her complaint of discrimination against Daley, not for her refusal to engage in "creative writing." Therefore, we construe Brown's retaliation claim to rest on the complaints she made about Fernando and Daley. We note that, in her opening brief, Brown argues that the 2017 salary reduction proceeding is irrelevant because her "complaints-and the ensuing retaliation-occurred a year later." Notwithstanding some inconsistent statements elsewhere in her briefing, we will accept Brown's representation that the retaliation claim does not concern any events prior to 2018.
To establish a prima facie case of racial harassment, plaintiffs must plead that (1) they are a member of a protected class; (2) they were subjected to unwelcome racial harassment; (3) the harassment was based on race; (4) the harassment unreasonably interfered with their work performance by creating an intimidating, hostile, or offensive work environment; and (5) the defendant is liable for the harassment. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.) The FAC bases the harassment claim, first, on the same two incidents involving Fernando and Daley that give rise to Brown's retaliation claim, and second, on the allegation that Brown was told by Filipino coworkers that they were "greater in numbers" than African- American staff. The FAC alleges that these incidents created a hostile or abusive work environment.
First, we agree with Brown that claim preclusion does not apply to the extent her FEHA claims do not challenge either her salary reduction or her termination. In Wassman, the court explained that "[r]es judicata would not bar claims of discrimination and harassment to the extent they sought recovery for harm caused by injuries other than loss of employment" because two causes of action are not the same when they seek redress for different injuries. (Wassman, supra, 24 Cal.App.5th at p. 849 &fn. 3.) The same conclusion applies here.
Brown would, however, be precluded from litigating any harms that were a consequence of those at issue in the administrative proceedings. (Gill v. Hughes (1991) 227 Cal.App.3d 1299, 1306.) Here, however, she is claiming harms that predate her termination.
Second, with respect to issue preclusion, DSH argues that, even if some of the incidents of alleged harassment and retaliation were not raised before the SPB, Brown should not be permitted to litigate them here because she could have argued them as a defense to her dismissal. (See Wassmann, supra, 24 Cal.App.5th at p. 847 ["in the administrative hearing, Wassmann could have raised her claims of racial discrimination, age discrimination, and harassment as grounds for a finding of lack of cause to dismiss her"].) This argument is based on the rule that, for the purpose of issue preclusion," 'issue' includes any legal theory or factual matter which could have been asserted in support of or in opposition to the issue which was litigated." (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1565-1566; see Pacific Mut. Life Ins. Co. v. McConnell (1955) 44 Cal.2d 715, 724-725 ["the prior determination of an issue is conclusive in a subsequent suit between the same parties as to that issue and every matter which might have been urged to sustain or defeat its determination"].) As courts have recognized, however, it can be difficult to determine the point at which a new legal theory or factual matter regarding the same issue would more appropriately be considered a different issue. (See, e.g., Burdette v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1689, as modified on denial of reh'g (Feb. 14, 2008) ["Determining the issue foreclosed by the prior judgment is one of the most difficult problems in applying the rule of issue preclusion."]; Wimsatt v. Beverly Hills Weight etc. Internat., Inc. (1995) 32 Cal.App.4th 1511, 1517 [the distinction between issues and legal theories "is not always easy"].) In Burdette, the court identified several factors to be considered: "Is there a substantial overlap between the evidence or argument to be advanced in the second proceeding and that advanced in the first? Does the new evidence or argument involve application of the same rule of law as that involved in the prior proceeding? Could pretrial preparation and discovery relating to the matter presented in the first action reasonably be expected to have embraced the matter sought to be presented in the second? How closely related are the claims involved in the two proceedings?" (Burdette, 158 Cal.App.4th at p. 1689 [quoting Rest.2d Judgments, § 27, com. c, p. 252].) Applying those factors here, we conclude that collateral estoppel applies to the extent Brown's FEHA claims involve matters that are closely related to or bound up with the facts that were before the SPB. We note that Brown's complaint to the DFEH, which preceded the filing of this action, alleged harassment, discrimination, and retaliation "on or about
June 21, 2018," the date of her termination. Her belated effort to separate out earlier incidents and treat them as distinct is inconsistent with how she understood them at the time. And regardless, they concern matters that were central to her administrative appeal of her termination. In reaching its conclusion that her termination was warranted, the SPB considered, among other things, the interactions with coworkers and supervisors that Brown seeks to litigate here; she had every incentive to raise her claims about them as a defense in that proceeding. (See Lucido v. Superior Court, supra, 51 Cal.3d at p. 342 ["the 'identical issue' requirement addresses whether 'identical factual allegations' are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same"].)
For example, Brown's interaction with Daley on February 26, 2018- which she puts forth as a basis for both her retaliation and harassment claims-was directly addressed in the SPB's decision. The SPB explained that it is not uncommon for a staff member to be relieved from shifts several minutes after it officially ends, and that Daley told Brown she would be relieved as soon as a staff member became available. The SPB found that Brown was relieved 17 minutes after her shift ended, when the final staff member for the next shift arrived, and that Brown's testimony about what time she was relieved was impeached by her own contemporaneous memorandum to her unit supervisor that day. The SPB further found that Brown had behaved inappropriately in that interaction by banging on the nursing station window and making a snide comment to a patient. Since Brown's conduct in this incident was one of the grounds on which the SPB found that termination was warranted, any claims of retaliation or harassment related to that incident-or that Daley's conduct was based on Brown's race-constitute additional factual matter or legal theories that would have been directly relevant to Brown's defense.
At oral argument, Brown's counsel agreed that collateral estoppel would apply to the extent Brown's FEHA claims were premised on an interaction that served as a basis for the SPB's decision upholding her termination.
With respect to Fernando, the FAC does not identify the "rude, abrasive, and hateful behavior" in which she allegedly engaged, but the SPB decision addresses multiple interactions between Fernando and Brown from November 2017 through March 2018. The SPB heard testimony about those incidents from Brown and Fernando, as well as from other staff members. The SPB found Brown's testimony "wholly unconvincing" and credited the testimony of Fernando and others who witnessed the incidents. As with Daley, the interactions between Fernando and Brown were central to the SPB proceeding, and a claim that Fernando engaged in racial harassment of Brown, or that DSH retaliated against Brown for complaining about that harassment, would likewise have been directly relevant to her defense.
Brown's allegation that Filipino staff members told her that they were "greater in numbers" than African-American staff is bound up with her allegation that this statement meant they could "get rid of Plaintiff whenever they wanted by sticking together and fabricating lies." However, the SPB rejected Brown's claim that other staff members conspired to falsely accuse her of misconduct; it found that Brown's testimony on that issue was not credible and that she provided no corroboration for her denials of misconduct. Moreover, the SPB rejected Brown's contention that the conduct of her coworkers in any way excused her misconduct, finding that "[n]o mitigation appears in the record."
As noted above, we also think this case is distinguishable from George, in which the plaintiff was allowed to proceed with a claim that her employer "accumulated a number of minor incidents and used them collectively to support the suspensions with retaliatory animus." (George, supra, 179 Cal.App.4th at p. 1488.) The appellate court approvingly quoted the trial court's framing of the issue: "Though the findings that [George] had in fact committed some conduct that justified some suspension cannot now be challenged in this action, the question is whether those findings are sufficiently inconsistent with the elements [George] must establish in order to prevail on her claim of unlawful retaliation...." (Ibid.) As contrasted with George, on the facts here we answer that question affirmatively. These were not "relatively minor incidents used as justification for discipline." (Ibid.) The SPB concluded that Brown repeatedly engaged in serious misconduct, putting the safety of patients and coworkers at risk; it rejected as unfounded her efforts to blame her coworkers, including Daley and Fernando, or to argue they had conspired to fabricate the claims against her; and it upheld the discipline DSH imposed. These findings are "sufficiently inconsistent" with Brown's retaliation and harassment claims as to warrant the application of issue preclusion.
Accordingly, we conclude that Brown's FEHA claims, to the extent they concern events in 2018, are efforts to relitigate matters that were adjudicated adversely to her by the SPB, and they cannot meaningfully be separated from her administrative challenge to her termination. And because in her briefing Brown disavowed any events occurring prior to 2018 as a basis for her retaliation claim, collateral estoppel precludes that claim in its entirety.
With respect to her harassment claim, although the FAC identifies only events in 2018 when pleading the cause of action, in her briefing Brown also points to the incidents in 2015 in which a hospital employee used a racial slur against a patient and told Brown that "Napa" stands for "No African People Allowed." We do not believe that Brown is collaterally estopped from relying on these incidents in asserting a harassment claim, because they are comparatively remote in time from the administrative hearings in 2017 and 2018 and they bear no significant relationship to the conduct at issue in those proceedings. They do not involve any claimed misconduct by Brown, and it would not have been meaningful for her to raise them "in opposition to the issue which was litigated." (Border Business Park, Inc. v. City of San Diego, supra, 142 Cal.App.4th at p. 1565.)
Nonetheless, reversal of the judgment is not warranted on this basis. While we will affirm a judgment if the sustaining of the demurrer was proper on any ground it raised, we may also exercise our discretion to decide whether a complaint fails to allege facts sufficient to state a cause of action for reasons that were not raised in the demurrer, provided the parties are afforded a reasonable opportunity to address those questions through supplemental briefing. (§ 68081; City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 205; Tukes v. Richard (2022) 81 Cal.App.5th 1, 19.) Because it was unclear to us that the FAC's allegations stated FEHA causes of action to the extent they did not challenge either Brown's salary reduction or her termination, we invited the parties to submit supplemental briefing on that issue, as well as on whether we should reverse the judgment for the purpose of granting leave to amend if we found the allegations inadequate. Having considered that briefing, we conclude that Brown cannot prosecute a claim based on incidents in 2015.
A demurrer is properly sustained for failure to state a claim when a complaint shows on its face that a cause of action is barred by the statute of limitations. (Hawkins v. Pacific Coast Bldg. Products, Inc. (2004) 124 Cal.App.4th 1497, 1502.) Because it presents a pure question of law and the parties have had an opportunity to address it, we may consider the statute of limitations in this appeal notwithstanding that it was not raised in the demurrer. (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 732, fn. 2.) At the time Brown filed her FEHA complaint and received her right-to-sue letter on December 28, 2018, the statute required that a complaint be filed no later than "one year from the date upon which the alleged unlawful practice . . . occurred." (§ 12960, former subd. (d).) Thus, any incidents occurring prior to December 28, 2017 are outside the statute of limitations. In her supplemental brief, Brown argues that we could deem the claim timely under the "continuing violation" doctrine. This doctrine "aggregates a series of wrongs or injuries for purposes of the statute of limitations, treating the limitations period as accruing for all of them upon commission or sufferance of the last of them." (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1192.) However, while the doctrine extends employer liability to conduct occurring outside the limitations period, the plaintiff must also establish unlawful conduct within the limitations period. (See Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812.) Because collateral estoppel prevents Brown from establishing harassment or retaliation within the limitations period, the continuing violation doctrine does not help her. It cannot render timely a claim that concerns only incidents that occurred in 2015.
During the pendency of this litigation, FEHA was amended to extend the statute of limitations to three years. (See § 12960, as amended by Stats. 2019, ch. 709, § 1.) However, the amended statute states that this extension was "not intended to revive claims that have already lapsed." (§ 12960, subd. (f)(3).)
Accordingly, although we follow a somewhat different route than the trial court did, we conclude that DSH's demurrer to Brown's FEHA claims was properly sustained.
C. Failure to Exhaust-Whistleblower Protection Act Claim
The Whistleblower Protection Act "is designed to protect persons who disclose information about 'improper governmental activity.' (§ 8547.2, subd[s]. (c) [&] (e).) A state official who uses his or her 'authority or influence' to interfere with such disclosures is subject to 'an action for civil damages brought . . . by the offended party.' (§ 8547.3, subds. (a) [&] (c).)" (Bjorndal v. Superior Court (2012) 211 Cal.App.4th 1100, 1107.)
Section 8547.8 "requires a state employee who is a victim of conduct prohibited by the Act to file a written complaint with the Personnel Board within 12 months of the events at issue (§ 8547.8, subd. (a)) and instructs, 'any action for damages shall not be available to the injured party . . .' unless he or she has filed such a complaint (id. subd (c)). The Legislature could hardly have used stronger language to indicate its intent that compliance with the administrative procedure of section[] 8547.8 . . . is to be regarded as a mandatory prerequisite to a suit for damages under the Act than to say a civil action is 'not . . . available' to persons who have not complied with the procedure." (Bjorndal v. Superior Court, supra, 211 Cal.App.4th at pp. 11121113.) Accordingly, a cause of action pleaded under the Whistleblower Protection Act "is subject to dismissal on demurrer for failure to exhaust administrative remedies if it fails to allege compliance with the requirements of section 8547.8." (Id. at p. 1108.)
Here, Brown did not comply with section 8547.8. Thus, the trial court properly dismissed this cause of action for failure to exhaust administrative remedies. Contrary to Brown's contention, adjudication of her retaliation claim (or factual issues which may overlap with her whistleblower claim) does not excuse her failure to exhaust administrative remedies with respect to her whistleblower claim.
D. Leave to Amend
Finally, Brown contends the trial court abused its discretion by refusing to grant her leave to amend the FAC to cure the defects for which dismissal was ordered. "Failure to grant leave to amend constitutes an abuse of discretion only if there is a reasonable possibility that the defect can be cured by amendment." (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 496.) "The burden is on the plaintiff[ ] to demonstrate that the trial court abused its discretion and to show in what manner the pleadings can be amended and how such amendments will change the legal effect of [the] pleadings." (Careau &Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) While Brown asserts that she can "easily amend her pleading to further clarify that her civil claims are predicated on issues that are distinct from those at issue in the administrative proceedings," she fails to explain what "clarification" she would offer and how it would avoid the preclusive effect of the administrative adjudication. For the same reason, she has not established that she could amend her complaint to render her harassment claim timely insofar as it concerns events in 2015. And finally, she has not established that any amendment could cure the jurisdictional defect in failing to timely raise her Whistleblower Protection Act claim. (See Yee v. Mobilehome Park Rental Review Bd. (1998) 62 Cal.App.4th 1409, 1429 [leave to amend properly denied where claims were "subject to demurrer as being barred either by res judicata or various applicable limitations statutes"].) Accordingly, Brown has not met her burden of establishing that there is a reasonable probability that the fatal defects can be cured.
DISPOSITION
The judgment is affirmed. DSH is entitled to its costs on appeal.
WE CONCUR: BROWN, Acting P.J. WHITMAN, J. [*]
[*] Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.