# Melendrez v. All Kids Academy

> District Court, S.D. California · September 25, 2023

URL: https://www.frixlaw.com/law-library/cases/10088380

## Case

- **Court:** District Court, S.D. California
- **Decided:** September 25, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10088380

## How later opinions describe it (automated extraction)

- holding that police department’s “requirement that an applicant possess a certain 21 level of hearing appears eminently reasonable” and directing judgment against plaintiff 22 who failed a “sound localization test”
- holding that an “employee has no cause of action for a failure to 8 investigate unlawful harassment or retaliation, unless actionable misconduct occurred”
- holding that a “termination 12 . . . rescinded less than 24 hours later” without “any economic loss” was still an “adverse 13 employment action[]” for retaliation under Title VII and Oregon law
- noting 6 cases that found “3-month” and “4-month” periods insufficient to establish causality

## Opinion text

1 UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF CALIFORNIA
3 Claudia MELENDREZ, Case No.: 22-cv-1725-AGS-DDL
4 Plaintiff, ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
5 v.
MOTION TO DISMISS (ECF 4)
6 ALL KIDS ACADEMY, et al.,
7 Defendants.
8
9 Plaintiff sued her employer for discrimination, harassment, retaliation, and related
10 claims. The employer moves to dismiss.
11 BACKGROUND1
12 Since 2009, plaintiff Claudia Melendrez has worked as a “floater teacher” for
13 defendant All Kids Academy. (ECF 1-3, at 4.) For over a decade, All Kids was aware that
14 Melendrez has “partial hearing loss and difficulty hearing faint sounds.” (Id.) According
15 to Melendrez, this condition never affected her performance, and it only became an issue
16 after she reported misconduct by another teacher. (See id. at 4–5.)
17 Specifically, on February 17, 2022, Melendrez observed and promptly reported that
18 a primary teacher “put[] her foot on a child’s neck.” (ECF 1-3, at 4.) Due to this incident,
19 California’s Department of Social Services issued a “Type B citation” to the facility. (Id.)
20 Thereafter, Melendrez alleges that she was subjected to a series of “false reports,” constant
21 monitoring, and unfair job requirements. (See id. at 5.)
22 On March 11, for example, Human Resources Director Clark Carlson told
23 Melendrez “that she could not return to work without hearing aids.” (ECF 1-3, at 5.) When
24 she promptly got them, however, she was still barred from working. In fact, on March 18
25

26
27 1 For motion-to-dismiss purposes, this Court accepts “the factual allegations in the
complaint as true” and construes them “in the light most favorable to the plaintiff.”
28
1 the facility director initially sent her home, saying that Melendrez “needed a hearing test.”
2 (Id. at 6.) Also, HR Director Carlson requested a doctor’s note “explaining her hearing test
3 results” and required her to “use sick leave” for the time she was kept home. (Id.)
4 Later that day, Melendrez was allowed to return to meet with Executive Director
5 Yolanda Perez. (ECF 1-3, at 6.) Melendrez detailed her unfair treatment since reporting the
6 teacher who put a “foot on a child’s neck.” (Id.) Perez assured her that she would not be
7 charged sick days and would be paid for her forced stay at home as administrative leave.
8 (Id.) But Melendrez’s problems continued after this meeting, including being
9 “continuously observed” and forbidden from being “alone with the children.” (Id. at 6–7.)
10 A few weeks later, on April 4, an associate teacher admonished Melendrez for using
11 her cell phone while “minding children during nap time,” after Melendrez “glanced at her
12 phone” to see if she had any texts about her sister who was in the hospital. (ECF 1-3, at 7.)
13 Another supervisor told Melendrez to lock up her phone, while failing to ask a nearby
14 teacher who “was using her personal laptop and cell phone” to do the same. (Id.)
15 Then, on April 19, 2022, All Kids fired Melendrez “due to her use of a cell phone in
16 the classroom.” (ECF 1-3, at 7.) But six days later, All Kids’ “Board of Directors reversed
17 the decision, reinstating [Melendrez’s] employment.” (Id. at 8.) HR Director Carlson
18 nonetheless “issued her a warning about cell phone use and required her to sign it.” (Id.)
19 Her reinstatement didn’t last long. On June 10, Melendrez was watching children
20 during “snack time” when she stopped a child from pulling out cords attached to a screen.
21 (ECF 1-3, at 9.) The chastened child, who was known for frequent “tantrums,” “grabbed”
22 her arm and “lunged” at her. (Id.) Melendrez walked away to let him calm down, but the
23 child told the primary teacher that Melendrez “hit him.” (Id.) Although that teacher’s back
24 was turned during the incident, she did not ask Melendrez about it and instead reported it
25 to the center’s director. After interviewing everyone, the director told Melendrez that the
26 child said she “pushed” him and that the reporting teacher “corroborated that story.” (Id.)
27 Finally, on June 23, 2022, All Kids again discharged Melendrez, noting that she had
28 “pushed” and “yelled at” a child. (ECF 1-3, at 9.)
1 DISCUSSION
2 All Kids moves to dismiss the complaint for failing to state a claim. To survive such
3 a motion, a complaint must contain enough facts to “state a claim to relief that is plausible
4 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fed. R. Civ. P. 12(b)(6).
5 Plausibility requires more than mere “conclusions” or a “formulaic recitation” of elements;
6 it must be based on “factual allegations” that “raise a right to relief above the speculative
7 level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up).
8 A. Whistleblower Retaliation (Claim 1)
9 A whistleblower-retaliation claim under California Labor Code section 1102.5(b)
10 involves a two-step burden-shifting process. See Lawson v. PPG Architectural Finishes,
11 Inc., 503 P.3d 659, 660, 663 (Cal. 2022). All Kids attacks both steps: It argues that
12 Melendrez cannot establish a prima facie retaliation case and—even if she could—that it
13 had a good-faith reason to fire her.
14 1. Prima Facie Case
15 To establish a prima facie case, plaintiffs must show that (1) they “engaged in a
16 protected activity” (whistleblowing), (2) their employer subjected them to “an adverse
17 employment action,” and (3) “there is a causal link between the two.” Moreno v.
18 UtiliQuest, LLC, 29 F.4th 567, 575 (9th Cir. 2022). No one contests the first point—that
19 Melendrez engaged in protected whistleblowing when she reported possible child abuse.
20 See Cal. Lab. Code § 1102.5(b) (shielding disclosures of any “violation of a state or federal
21 statute”); Cal. Penal Code § 273a (child-abuse statute). But the next two elements are in
22 dispute.
23 The crux of All Kids’ argument is that “the four-month time gap” between
24 Melendrez’s whistleblowing and termination cannot support an inference of “retaliatory
25 causation.” (ECF 4-1, at 4.) There are two flaws with this reasoning: All Kids incorrectly
26 assumes that Melendrez’s June 23, 2022 firing is the only relevant adverse employment
27 action here and that the only indication of retaliatory motive is the timing.
28
1 In its analysis, All Kids presumably ignores Melendrez’s earlier April 19, 2022
2 discharge because she was reinstated within a week. A “termination” is “an adverse
3 employment action.” Wilson v. Cable News Network, Inc., 444 P.3d 706, 713 (Cal. 2019).
4 And it remains so, for purposes of retaliation, even “if the employee is later reinstated.”
5 See Alvarez v. Lifetouch Portrait Studios, Inc., Nos. B286910, B289910, 2020 WL 61989,
6 at *15 (Cal. Ct. App. Jan. 6, 2020) (analyzing retaliation under the Fair Employment and
7 Housing Act); see also Fay v. Costco Wholesale Corp., No. EDCV 10-00834 DDP
8 (DTBx), 2012 WL 683176, at *4 (C.D. Cal. Mar. 2, 2012) (noting that “the same standard
9 governs” the analysis of an “adverse employment action” for whistleblower retaliation
10 under Cal. Lab. Code § 1102.5 and FEHA retaliation); cf. Aichele v. Blue Elephant
11 Holdings, LLC, 292 F. Supp. 3d 1104, 1111–12 (D. Or. 2017) (holding that a “termination
12 . . . rescinded less than 24 hours later” without “any economic loss” was still an “adverse
13 employment action[]” for retaliation under Title VII and Oregon law). So, Melendrez’s
14 discharges both qualify as adverse actions,2 and the first one clocked in only two months
15 after her whistleblowing. (See ECF 1-3, at 4 (February 17 report); id. at 7 (April 19
16 termination)).
17 The question then is whether this two-month gap and any other allegations establish
18 causation. For the required “causal link,” a plaintiff must prove that retaliation “was a
19 substantial or motivating factor” in the “adverse employment actions.” See Sherman v.
20 Pepperidge Farm, Inc., No. 8:22-cv-01781-JWH-ADS, 2023 WL 5207458, at *7–8 (C.D.
21 Cal. Apr. 28, 2023). This may be shown circumstantially, such as by “closeness in time”
22 or “a pattern of conduct consistent with a retaliatory intent.” Hawkins v. City of L.A.,
23 252 Cal. Rptr. 3d 849, 856 (Ct. App. 2019).
24
25
26
2 As more adverse actions would not change the analysis, the Court need not decide
27 whether the disciplinary warning or any other acts count as adverse employment actions.
See Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004) (“A
28
1 Melendrez offers both types of circumstantial cues. The two-month span between
2 whistleblowing and the first termination offers some support for causation. Of course, if a
3 plaintiff’s prima facie case relies on “mere temporal proximity between an employer’s
4 knowledge of protected activity and an adverse employment action,” those events must be
5 “very close” in time. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001) (noting
6 cases that found “3-month” and “4-month” periods insufficient to establish causality). But
7 even a period of “three to eight months is easily within a time range that can support an
8 inference of retaliation,” in some circumstances. Flores v. City of Westminster, 873 F.3d
9 739, 750 (9th Cir. 2017); see also Hawkins, 252 Cal. Rptr. 3d at 856 (finding retaliatory
10 causation based solely on “proximity in time” when plaintiffs were fired between 6 and
11 16 months after their whistleblowing and one to two months after the end of the formal
12 investigation it prompted).
13 And Melendrez’s case goes well beyond suspicious timing. She alleges that her
14 child-abuse report had negative consequences for All Kids: it received a citation from the
15 Department of Social Services. (ECF 1-3, at 4.) Immediately afterwards, Melendrez claims
16 that she began suffering nearly daily indignities until her first firing—that is, constant and
17 unwarranted monitoring, false reports of misconduct, unfair discipline, attempts to wrongly
18 dock her sick leave, inappropriate queries and requirements regarding hearing aids, and
19 improper exclusions from work. (See generally id. at 5–7.) This pattern of conduct—over
20 a brief two-month period—makes out a prima facie case that her whistleblowing was a
21 motivating factor in her termination.
22 2. Employer’s Same-Decision Defense
23 Once a prima facie case is established, the burden shifts to the employer to
24 demonstrate a “same-decision defense.” Lawson, 503 P.3d at 663. Specifically, it must
25 prove “by clear and convincing evidence that”—regardless of any whistleblowing—“it
26 would have taken the same action for legitimate, independent reasons.” Id. at 660 (cleaned
27 up); see also id. at 663. All Kids’ sole argument in this regard is that it had reasonable
28 grounds to believe that Melendrez assaulted a child—and to fire her for this misconduct—
1 even if that belief was mistaken. (See ECF 4-1, at 4–6.) But that cannot explain the first
2 firing of Melendrez on April 19, 2022, because this alleged assault did not happen until
3 two months later, on June 10. (See ECF 1-3, at 8–9.) So, Melendrez’s whistleblower-
4 retaliation claim can go forward as to the April 19 firing.
5 As for the June 23 termination, the Court must decide if Melendrez has “plead[ed]
6 herself out of court.” See Weisbuch v. Cty. of L.A., 119 F.3d 778, 783 n.1 (9th Cir. 1997).
7 In other words, the question is: Has Melendrez “pleaded facts” that sew up the same-
8 decision defense so securely that she “cannot prevail”? See id. No, she can still plausibly
9 succeed. Although the child-abuse report against Melendrez aids All Kids’ defense, that
10 defense must be proven to a clear-and-convincing standard, and Melendrez can undercut it
11 by demonstrating pretext. Specifically, in February 2022 Melendrez reported another
12 teacher for “putting her foot on a child’s neck,” but that teacher returned to work within a
13 week. (ECF 1-3, at 4–5.) By contrast, just four months later All Kids fired Melendrez
14 because she reportedly “pushed” and “yelled at” a child. (Id. at 9.) In the light most
15 favorable to Melendrez, this pretext showing saves her retaliation claim as to the June 23
16 firing. See Buhl v. Abbott Labs., 817 F. App’x 408, 410–11 (9th Cir. 2020) (noting that
17 pretext may be shown by identifying “any similarly situated employee who was treated
18 more favorably”).
19 B. FEHA Discrimination (Claim 2) and Wrongful Termination (Claim 6)
20 For Melendrez’s claims of disability-related discrimination and wrongful
21 termination under California’s Fair Employment and Housing Act, the Court must apply
22 the McDonnell Douglas “three-step burden-shifting test.” See Alamillo v. BNSF Ry. Co.,
23 869 F.3d 916, 920 (9th Cir. 2017); see also McDonnell Douglas Corp. v. Green, 411 U.S.
24 792, 802–04 (1973); Cal. Gov’t Code § 12940(a) (FEHA discrimination and wrongful
25 termination). First, “plaintiff bears the burden of establishing a prima facie case of
26 discrimination [or wrongful termination] based upon physical disability.” See Alamillo,
27 869 F.3d at 920. Second, after a prima facie case is established, the burden “shifts to the
28 employer to offer a legitimate, nondiscriminatory reason for the adverse employment
1 action.” Id. If the employer does so, plaintiff must finally “offer evidence that the
2 employer’s stated reason is either false or pretextual, or evidence that the employer acted
3 with discriminatory animus, or evidence of each which would permit a reasonable trier of
4 fact to conclude the employer intentionally discriminated.” Id.
5 1. Prima Facie Case
6 For a prima facie case of FEHA disability discrimination, plaintiffs must show that
7 they: (1) “suffer[] from a disability,” (2) are “otherwise qualified” for the job, and (3) were
8 “subjected to adverse employment action because of [their] disability.”3 Alamillo, 869 F.3d
9 at 920. An employer acts “because of” a disability “when the disability is a substantial
10 motivating reason for the employer’s decision to subject the employee to an adverse
11 employment action.” Id. All Kids challenges only the first and third elements.
12 First, All Kids disputes that Melendrez’s “partial” hearing loss and “difficulty
13 hearing faint sounds” qualifies as a disability under FEHA. (ECF 4-1, at 6–7.) All Kids
14 relies on Melendrez’s admission that her “hearing condition did not have any restriction or
15 limitations on her performance.” (Id.) As relevant here, FEHA defines a “physical
16 disability” as a disorder or condition that (1) affects “special sense organs” and (2) “[l]imits
17 a major life activity,” such as “working.” Preston v. City of Carlsbad, No. D072950,
18 2019 WL 395738, at *11 (Cal. Ct. App. Jan. 31, 2019) (quoting Cal. Gov’t Code
19 § 12926(m)(1)&(m)(1)(B)(iii)). Melendrez’s “hearing loss” does not meet this standard, as
20 she contends that it does not affect her performance and she never “request[ed] any
21 accommodation” of it. See Preston, 2019 WL 395738, at *13 (analyzing FEHA hearing-
22 loss discrimination claim).
23 But that does not end the analysis. Another way to satisfy the physical disability
24 element is with a perceived disability. That is, plaintiff may show that she was “regarded
25

26
27 3 For wrongful termination due to a disability, the first two elements are the same,
but the third element is that plaintiffs: (3) were subjected “to discharge . . . from
28
1 or treated by the employer” as having a “physical condition that makes achievement of a
2 major life activity difficult.” See Cal. Gov’t Code § 12926(m)(4). Although the complaint
3 does not expressly mention this alternative theory, Melendrez now argues that All Kids
4 treated her as though she had a disability and “perceived” that it affected her “ability to
5 perform her job functions.” (ECF 6, at 16.) The complaint offers some support for this
6 argument. Melendrez alleges that All Kids told her that “she could not return to work until
7 she purchased hearing aids.” (ECF 1-3, at 5.) And even after she did so, she was again
8 barred from work on the ground that she still “needed a hearing test.” (Id. at 6.) In the light
9 most favorable to Melendrez, All Kids believed her hearing condition made it “difficult”
10 to accomplish her job. So, she plausibly alleges a perceived disability under FEHA.
11 Yet All Kids protests that it never perceived Melendrez as disabled. At most, it
12 believed Melendrez had “a minor hearing impairment that could be excuse[d] by a doctor
13 or else neutralized with a small hearing aid device.” (ECF 7, at 7–8; see also ECF 1-3,
14 at 5–6.) For legal support, All Kids points to the ADA employment-discrimination case of
15 Tubens v. Police Department of City of New York, 48 F. Supp. 2d 412 (S.D.N.Y. 1999), in
16 which the defense also argued that it perceived plaintiff as physically “impaired,” but not
17 “disabled.” Id. at 417. But Tubens was interpreting the meaning of “disability” in the
18 Americans with Disabilities Act, which requires that the disabling impairment
19 “substantially limit[]” a major life activity. Id. at 416 (citing 42 U.S.C. § 12102). By
20 contrast, a “physical disability under the FEHA does not require the federal test’s
21 substantial limitation of a major life activity.” Colmenares v. Braemar Country Club, Inc.,
22 63 P.3d 220, 226 (Cal. 2003). Thus, cases interpreting the ADA, like Tubens, are “not
23 persuasive where the statutory language of the FEHA differs markedly from the ADA.”
24 See Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 83 Cal. Rptr. 3d 190, 211 (Ct. App. 2008);
25 see also Bryan v. United Parcel Serv., Inc., 307 F. Supp. 2d 1108, 1112 (N.D. Cal. 2004)
26 (explaining that FEHA affords “greater protection for claims of disability than the federal
27 ADA” and holding that monocular plaintiffs were “disabled under FEHA,” though not
28 under the ADA).
1 Next, All Kids maintains that Melendrez falls short on the final element—a
2 disability-related adverse employment action. All Kids argues convincingly that being
3 “barred” from the classroom with full pay and being “constantly monitored” by an
4 employer do not rise to the level of an adverse employment action. (See ECF 7, at 8.) But
5 Melendrez also contends that her “perceived disability was a substantial motivating reason”
6 for her termination. (See ECF 6, at 16; see also ECF 1-3, at 11, 14.) And the complaint
7 includes several allegations in aid of this theory. Starting in mid-March 2022, Melendrez
8 was barred from work until she bought hearing aids and took a hearing test; told she needed
9 to obtain a doctor’s note “explaining her hearing test results”; informed that she would be
10 charged “sick leave” for these forced absences; and then, upon her return to school, was
11 “continuously observed” and never “left alone with the students.” (ECF 1-3, at 5–7.) All
12 Kids then fired and reinstated her in April 2022, and finally fired her permanently in
13 June 2022. (Id. at 7, 9.) Both terminations qualify as adverse employment actions,
14 regardless of reinstatement. See Muhammad v. United Airlines, Inc., No. CV 07-6474 CAS
15 (CWX), 2008 WL 11336667, at *4 (C.D. Cal. Dec. 8, 2008) (holding that plaintiff’s
16 termination and reinstatement “with full back pay” could qualify as an “adverse
17 employment action” in a FEHA discrimination case); Dumas v. New United Motor Mfg.
18 Inc., No. C 05-4702 PJH, 2007 WL 1223806, at *8 (N.D. Cal. Apr. 24, 2007) (“Defendant’s
19 reinstatement of plaintiff with back pay and seniority does not serve to eliminate the
20 termination as an adverse [employment] action” for FEHA discrimination.).
21 On the other hand, All Kids has “been aware of” Melendrez’s “hearing condition for
22 over ten years.” (ECF 1-3, at 4.) At first blush, this seems to undermine the allegation of
23 hearing-related discrimination (while bolstering the retaliation claim, plausibly suggesting
24 that the hearing-aid issue was a smokescreen). But Melendrez need not show that All Kids
25 writ large is hostile to the hearing-impaired; she must only prove that the alleged bad
26 actors—Perez and Carlson—are. (See ECF 6, at 21.) And it is unclear how long Perez and
27 Carlson have been employed there or how often they interacted with Melendrez previously.
28 In the light most favorable to Melendrez, the Court must presume that this was one of their
1 first opportunities to discriminate against her. Thus, the timing and sequence of these
2 events plausibly suggest that she was discharged due to disability-related animus. Her
3 FEHA discrimination and wrongful termination claims survive.
4 2. Shifted Burdens
5 Although the burden now shifts to All Kids to offer a legitimate reason for firing
6 Melendrez, the complaint itself sets forth an explanation. Her April 2022 termination was
7 “due to her use of [a] cell phone in the classroom” (ECF 1-3, at 7), and her June 2022
8 discharge arose after two people—a teacher and student—reported that Melendrez
9 physically “pushed” the child (id. at 9). The cell-phone-related rationale is the more
10 debatable reason, especially because the complaint does not mention any school rules
11 regarding cell phones. But the Court need not resolve that issue.
12 Even if All Kids succeeds in shifting the burden back to plaintiff to prove intentional
13 discrimination or pretext, other allegations in the complaint plausibly meet her final
14 burden. On the same occasion that Melendrez was admonished for using her phone in the
15 classroom, another teacher “was using her personal laptop and cell phone,” yet was never
16 reprimanded. (ECF 1-3, at 7.) As for the child-abuse rationale, as discussed earlier, there
17 are ample pretext allegations, given the relatively charitable treatment of the teacher
18 Melendrez accused of “putting her foot on a child’s neck.” (See ECF 1-3, at 4–5.) “A
19 plaintiff may raise a triable issue of pretext through comparative evidence that the employer
20 treated . . . similarly situated employees more favorably than the plaintiff.” Earl v. Nielsen
21 Media Rsch., Inc., 658 F.3d 1108, 1113 (9th Cir. 2011).
22 As a result, the Court denies the motion to dismiss the FEHA claims for
23 discrimination and wrongful termination based on a disability (counts 2 and 6).
24 C. FEHA Disability Harassment (Claim 3)
25 In claim 3, Melendrez charges All Kids with disability harassment under FEHA
26 based on a hostile work environment. In this context, “harassment” means “offensive
27 comments or other abusive conduct” that is “so objectively severe or pervasive as to create
28 a hostile or abusive working environment.” Doe v. Dep’t of Corr. & Rehab.,
1 255 Cal. Rptr. 3d 910, 923 (Ct. App. 2019) (cleaned up). To establish a prima facie case of
2 such harassment, Melendrez must show that: “(1) she is a member of a protected class [due
3 to a physical or mental disability]; (2) she was subjected to unwelcome harassment; (3) the
4 harassment was based on her protected status; (4) the harassment unreasonably interfered
5 with her work performance by creating an intimidating, hostile, or offensive work
6 environment; and (5) defendants are liable for the harassment.” See Galvan v. Dameron
7 Hosp. Ass’n, 250 Cal. Rptr. 3d 16, 28 (Ct. App. 2019); see also Cal. Gov’t Code
8 § 12940(j).
9 Melendrez relies on the following to show All Kids’ harassment: “requiring Plaintiff
10 to wear hearing aids, have a hearing test conducted, and consistently monitoring her until
11 she completed a hearing test.” (ECF 6, at 17.) These are not the sort of “offensive
12 comments” or “abusive conduct” that support such a claim. Harassment consists
13 exclusively “of conduct outside the scope of necessary job performance,” such as “verbal
14 epithets,” “derogatory posters or cartoons,” “unwanted sexual advances,” and the like.
15 Janken v. GM Hughes Elecs., 53 Cal. Rptr. 2d 741, 745 (Ct. App. 1996). Melendrez’s
16 allegations, on the other hand, belong to the category of decisions that could conceivably
17 be “necessary to performance of a supervisor’s job.” Id. In other words, a manager may
18 lawfully require an employee to accept greater supervision or to undergo hearing testing,
19 in some circumstances. See Quinn v. City of L.A., 100 Cal. Rptr. 2d 914, 921 (Ct. App.
20 2000) (holding that police department’s “requirement that an applicant possess a certain
21 level of hearing appears eminently reasonable” and directing judgment against plaintiff
22 who failed a “sound localization test”). Of course, an employer might impose those same
23 job demands unfairly due to some prohibited animus, but that amounts to a claim of
24 “discrimination, not harassment.” See Janken, 53 Cal. Rptr. 2d at 746.
25 Thus, Melendrez’s disability-harassment claim must be dismissed.
26 D. FEHA Retaliation (Claim 4)
27 All Kids raises similar arguments against the retaliation claim under FEHA (claim 4)
28 as for whistleblower retaliation (claim 1)—that is, it contends that Melendrez has not
1 pleaded a prima facie case and cannot overcome its good-faith defense. But the legal
2 analysis is somewhat different. Unlike whistleblower retaliation, FEHA retaliation claims
3 call for the “well-worn, but meaningfully different,” three-step McDonnell Douglas
4 burden-shifting framework. See Lawson, 503 P.3d at 660, 662.
5 The elements of a prima facie case are the same for both FEHA and whistleblower
6 retaliation, but the relevant “protected activity” is different. Compare Yanowitz v. L’Oreal
7 USA, Inc., 116 P.3d 1123, 1130 (Cal. 2005) (FEHA retaliation under Cal. Gov’t Code
8 § 12940(h)) with Moreno, 29 F.4th at 575 (whistleblower retaliation under Cal. Lab. Code
9 § 1102.5(b)). Under FEHA, an employee may not be discharged or discriminated against
10 for opposing “any practices forbidden under” FEHA or for filing “a complaint” under
11 FEHA. Cal. Gov’t Code § 12940(h).
12 All Kids contends that Melendrez has not alleged that she engaged in any such
13 “protected activities.” (ECF 4-1, at 4 n.1.) Melendrez responds that her FEHA-protected
14 activity was complaining to the executive director about “the harassment based on her
15 hearing aids.” (See ECF 6, at 18.) An “employee’s formal or informal complaint to a
16 supervisor regarding unlawful discrimination . . . may constitute retaliation” under FEHA.
17 Dokes v. Safeway, Inc., No. 2:15–cv–01157–TLN–DB, 2018 WL 1518562, at *10
18 (E.D. Cal. Mar. 28, 2018). So, Melendrez has pleaded a protected activity. In addition, she
19 has sufficiently alleged a causal link between that protected activity and an adverse
20 employment action: she complained to the executive director on March 18, 2022; was
21 constantly monitored for weeks thereafter; fired on April 19, 2022 (and later reinstated);
22 and fired for the last time on June 23, 2022. (ECF 1-3, at 6.) These facts make out a prima
23 facie case.
24 The burden now shifts to All Kids to offer legitimate, nonretaliatory reasons for
25 terminating Melendrez. The Court’s burden-shifting analysis here mirrors the discussion
26 for the FEHA discrimination claim. See supra section B.2. Once again, even if the Court
27 accepts All Kids’ good-faith explanations, Melendrez plausibly alleges that they are
28 pretextual. So, the FEHA retaliation claim remains.
1 E. FEHA Failure to Prevent Harassment and Retaliation (Claim 5)
2 In claim 5, Melendrez accuses All Kids of failing to prevent harassment and
3 retaliation, in violation of California Government Code section 12940(k). (ECF 1-3,
4 at 13–14.) All Kids’ lone argument against this cause of action is that a failure-to-prevent
5 claim cannot be based on a deficient underlying charge of harassment or retaliation. (See
6 ECF 4-1, at 8); see also Thompson v. City of Monrovia, 112 Cal. Rptr. 3d 377, 393
7 (Ct. App. 2010) (holding that an “employee has no cause of action for a failure to
8 investigate unlawful harassment or retaliation, unless actionable misconduct occurred”).
9 The Court concurs with that legal principle, but it dictates only a partial dismissal here. The
10 harassment and failure-to-prevent-harassment claims perish together. See supra section C.
11 But Melendrez adequately pleaded retaliation, so she may pursue a claim for failing to
12 prevent retaliation.
13 F. Negligent Supervision (Claim 7)
14 All Kids moves to dismiss the negligent-supervision claim because Melendrez “fails
15 to identify which employees were a threat” and fails to allege “that employees under
16 supervision had a known past history of specific unlawful conduct.” (ECF 4-1, at 9; see
17 also ECF 1-3, at 15 (claim 7: specifically alleging negligent supervision of “unlawful
18 practices” and “unlawful conduct”).) To “establish negligent supervision, a plaintiff must
19 show that a person in a supervisorial position over the actor had prior knowledge of the
20 actor’s propensity to do the bad act.” Z.V. v. Cty. of Riverside, 189 Cal. Rptr. 3d 570, 581
21 (Ct. App. 2015). Although Melendrez doesn’t specify anyone by name in the claim itself
22 (see ECF 1-3, at 15), she now identifies the relevant supervisor as “Defendant’s board” and
23 the bad actors as “Executive Director Perez” and “Human Resources Director Carlson”
24 (ECF 6, at 21).
25 Yet the complaint is devoid of facts linking these people to the relevant negligent-
26 supervision elements. (See ECF 1-3, at 15.) In her responsive papers, Melendrez argues
27 that All Kids’ board had prior knowledge of misconduct “because a cursory look at the
28 termination report revealed its unfounded, disparaging, and retaliatory nature.” (ECF 6,
1 21.) But these facts appear nowhere in the complaint. In fact, the complaint’s entire
2 || discussion of the board is two sentences: “Plaintiff appealed her termination which was
3 || presented to Defendant’s Board of Directors on Monday, April 25, 2022. The Defendant’s
4 ||Board of Directors reversed the decision, reinstating Plaintiff's employment.” (ECF 1-3,
5 || at 8.) The “termination report” is never mentioned. And there are no allegations whatsoever
6 || that the board knew or should have known that Perez or Carlson, specifically, were engaged
7 unlawful practices.
8 Melendrez failed to state a claim of negligent supervision, so claim 7 is dismissed.
9 ||G. Leave to Amend
10 Melendrez seeks leave to amend for any dismissed claims, and All Kids cursorily
11 ||}opposes that request. (See ECF 6, at 26; ECF 7, at 11.) Unless the defense shows that a
12 || “defective complaint” cannot “be cured,” a “plaintiff is ordinarily entitled to amend the
13 ||}complaint before the action is dismissed.” See Arimilli v. Rezendes, No. CV-21-00345-
14 || PHX-GMS, 2023 WL 2734456, at *7 (D. Ariz. Mar. 31, 2023). All Kids has not shown
15 amendment would be futile or otherwise impermissible. So, Melendrez may amend.
16 CONCLUSION
17 All Kids’ motion to dismiss is GRANTED in part as follows:
18 1. Claim 3 (disability harassment) is DISMISSED.
19 2. Claim 5 (failure to prevent harassment and retaliation) is DISMISSED IN
20 PART. The failure-to-prevent-retaliation claim survives. The Court dismisses
54 only the cause of action for failure to prevent harassment.

3. Claim 7 (negligent supervision) is DISMISSED.
73 || The motion is otherwise DENIED. Melendrez has leave to amend any dismissed claims.
74 || By October 23, 2023, Melendrez must file any amended complaint.
75 Dated: September 25, 2023
26
Hon. Andtew G. Schopler
27 United States District Judge
28
14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10088380. Public record. Not legal advice.