Claggett v. Cnty. of L.A.

SANDRA CLAGGETT, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendant and Respondent.

B295420

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

May 1, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No.BC618877)

APPEAL from a judgment of the Superior Court of Los Angeles County, Terry A. Green, Judge. Affirmed.

Mike Pincher for Plaintiff and Appellant.

Los Angeles County Employees Retirement Association Steven P. Rice, Chief Counsel, Johanna M. Fontenot and Michael D. Herrera Staff Counsel for Defendant and Respondent Los Angeles County Employees Retirement Association.

Miller Barondess, Mira Hashmall and Emily A. Sanchirico for Defendants and Respondents County of Los Angeles, Richard Onibasa and Stacey Winters.

INTRODUCTION

Plaintiff Sandra J. Claggett was employed by the County of Los Angeles from 1972 to 1980, then from 1985 until her retirement in January 2020. Before she retired, she filed this action against the County, County employees Richard Onibasa and Stacey Winters, and the Los Angeles County Employees Retirement Association (LACERA). Claggett's extensive allegations fell into three general categories. First, Claggett asserted that LACERA failed to inform her of her rights regarding retirement "Plan A" upon her departure from the County in 1980, and that it gave her incorrect information about buying back into Plan A upon her return in 1985. Second, Claggett alleged that the County violated her rights under California's Moore-Brown-Roberti Family Rights Act (CFRA) (Gov. Code, § 12945.2),¹ part of the California Fair Employment and Housing Act (FEHA) (§ 12900 et seq.), by giving her notice upon her return from a medical leave that her work position and location were going to be transferred to a different department half a mile away. The transfer never took place. Third, Claggett alleged that based on several events spanning multiple years, the County and individual defendants harassed her, retaliated against her, and discriminated against her in violation of FEHA. The defendants filed demurrers to Claggett's first amended complaint and second amended complaint. The trial court sustained the second set of demurrers without leave to amend. Claggett appealed.

We affirm. Claggett's allegations about misrepresentations regarding retirement Plan A are time-barred, and the delayed discovery rule does not save her claims. Claggett's CFRA claim fails because the transfer never occurred so there was no adverse employment action, and Claggett did not allege facts supporting a violation of CFRA rights. Finally, Claggett has not alleged facts sufficient to state a cause of action under FEHA, because she has not alleged facts showing adverse employment action or harassment. We also reject Claggett's contention that the trial court abused its discretion in denying Claggett leave to further amend her complaint.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual allegations

Claggett filed a 40-page complaint with more than 200 pages of exhibits on November 3, 2017; she never served it on the defendants. Claggett filed a first amended complaint (FAC) on January 9, 2018. She filed a second amended complaint (SAC) on August 6, 2018. The following facts are summarized from Claggett's complaints.

Claggett is "a female of African-American national origin." She worked for the County from August 28, 1972 to July 18, 1980, and again from September 4, 1985 to the present. Claggett's "last job before going out on disability leave" was as a Senior Management Secretary II in the Chief Information Office (CIO) at the Los Angeles World Trade Center. As of January 7, 2020, Claggett has retired.

Claggett alleged, "Starting with Claggett's initial resignation from [the County] in 1980 and then her return to work in 1985, she has been targeted by first one and then eventually two cliques" at the County and LACERA. Thesecliques allegedly schemed against Claggett in two ways: first, by barring Claggett from rejoining the County's retirement "Plan A" after she returned to the County workforce, and second, by engaging in ongoing discrimination, harassment, and retaliation in an effort to force Claggett to resign.

1. Retirement Plan A

Regarding her retirement plan, Claggett alleged that during her first employment with the County from 1972 to 1980, she participated in the County's retirement Plan A. When she left the County's employment in 1980, the County and LACERA "failed to advise her . . . of the significance of her accepting her Plan A contributions check for $3804.48, which eliminated her from restoring Plan A should she ever return to [the County] without first reimbursing the plan for the contributions she would have made had she never left."

When Claggett returned to County employment in 1985, the County and LACERA "combined to deny her restoration rights under Plan A of [the County's] retirement system by grossly overstating what contributions amount she would have to pay . . . in order to restore the plan." (Claggett alleged that she was erroneously told that to restore her rights in a Plan A, she would have to pay "about $20,000, which was cost-prohibitive at the time and an erroneous reflection of what she should have paid based on a $3804.48 contribution and only four-and-a-half years away from [the County]." Claggett's inability to buy back into Plan A "forced her into Plan E, a plan with substantially lower benefits of all kinds." Claggett alleged this misrepresentation by the County and LACERA was a concerted scheme "to deny Claggett her Plan A rights."

Claggett alleged that she "was not aware of Plan A restoration rights at all" upon her return to County employment.After learning from a peer that restoration was possible, in 2004 and 2006 Claggett "inquired to [the County] and LACERA on her own." Claggett attached a letter dated August 26, 2004, stating that Claggett had requested to change from Plan E to Plan A. To rejoin Plan A, Claggett was required to "pay, in full, the employee contributions for Plan A, plus the interest those contributions would have earned had they been on deposit from the date you first became a member of LACERA." The total cost was $97,263.88. Claggett attached a second letter, which included similar information but was dated March 29, 2006 and marked "updated." This letter stated that the total cost to re-join Plan A would be $114,355.67. Claggett alleged that "any disclosures of the conditions leading to Plan A forfeiture and its prevention should have been put in writing in both 1980 and 1985 just like they later were to Claggett during 2004 and 2006. By those years, however, the restoration amounts were $97,263.88 and $114,335.67, respectively, cost prohibitive for her as they would be for most returning [County] employees."

Claggett also attached a letter dated September 29, 2017 from LACERA's assistant executive officer, JJ Popowich, addressing Claggett's "Second Level Administrative Appeal." The Popowich letter noted that Claggett alleged that she was denied the right to re-join Plan A. Popowich stated that he and his staff "have determined that Ms. Claggett has not been denied the right to restore to Plan A. We also determined staff provided Ms. Claggett with numerous opportunities to restore to Plan A and that Ms. Claggett has chosen not to avail herself of those opportunities." Popowich noted Claggett alleged that when she returned to County employment in 1985, she was told it would be approximately $20,000 to restore her rights under Plan A.Popowich stated, "It is difficult to determine what information Ms. Claggett received when she returned to service in 1985." Popowich "requested staff to estimate the cost to restore [Claggett] to Plan A, had she elected to enroll in Plan D upon her return and it would have been around $5,512.87." He also noted that "there is a record of her requesting to complete an Open Window Plan Transfer as early as October 27, 1988—three years after her return. The lump sum cost provided to her on March 29, 1989 was $5,946.04." The March 29, 1989 letter, which was also attached as an exhibit to the SAC, shows that in 1989, Claggett was informed that she could transfer to "Plan D" if she made a deposit of $5,946.04.

A letter dated December 15, 2017 from Stephen P. Rice, Chief Counsel, LACERA, stated that Claggett's "third level administrative appeal" was also denied, "except that Ms. Claggett may be restored to Plan A if she makes full payment of all contributions and interest due to the present. . . . We estimate this amount to be $315,918.54 as of December 31, 2017." The letter also stated that Claggett "has now exhausted her administrative remedies with LACERA," and if she wanted to challenge the decision, she could file a writ petition within six months. Claggett alleged that LACERA "had predetermined the outcome" of the appeal as part of the scheme against her.

2. Discrimination, Harassment, and Retaliation

Claggett alleged that the second "clique" operated "from 2003 on . . . against Claggett as the only African-American female in the CIO and also for her standing up for her employee rights on a consistent basis." Claggett alleged that the County, individual defendants Richard Onibasa and Stacey Winters, and others "tacitly or directly agreed . . . in a concert of action to frustrate Claggett's rights . . . for the purpose of promoting theclique by covering each other's backs despite any rule-breaking they performed."

Claggett's allegations are complex and intertwined, but essentially involve six separate incidents, as follows:

(1) The Clark incident, October 2011 to November 2012. Claggett...