(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)
C. DEFENDANTS’ DEMURRER FAILS TO CITE TO THE CORRECT LAW
PLAINTIFF HAS PLED A PRIMA FACIE CLAIM FOR RETALIATION AGAINST THE INDIVIDUAL DEFENDANT AND THE MANAGERIAL PRIVILEGE DOES NOT BAR HER CLAIM
Defendants have demurred to Plaintiffs Third Cause for Retaliation against Defendant Mr. Jones without any legal or factual basis. The law on retaliation is clear. Contrary to Defendants’ assertions, an employee (supervisor) the Fair Employment and Housing Act makes it unlawful for “any employer or person to retaliate against an employee for protected activities.” Government Code §12940(h). Supervisors are subject to personal liability for retaliation under FEHA. Page v. Superior Court, (1995) 31 Cal.App.4th 1206, 1211-1212.
Defendants’ analogy to Janken v. Hughes (1996) 46 Cal.App.4th 55 and Reno v. Baird, (l998) 18 Cal.4th 640, indicating that the actions taken against Plaintiff were common personnel management actions, is undeniably a misstatement of law. In Janken, the court clearly distinguished between a supervisor’s actions that are commonly necessary personnel management actions and allegation of conduct hat violation FEHA. Janken at 62-63. The Janken court concluded that INDIVIDUAL supervisory employees should be held personally liable for conduct which violates FEHA unless their conduct is based solely on managerial decisions that are inherently necessary to perform their supervisory functions. Discussing the discrimination between harassment and discrimination, the Janken court stated, we conclude that the legislature’s differential treatment of harassment and discrimination is based on the fundamental distinction between harassment as a type of conduct not necessary to a supervisor’s job performance as contrasted with business or personnel management decisions. Id. The court in Reno confirms Janken’s conclusion that the imposition of indivdual liability is appropriate. Reno at 645. Therefore, Defendant Mr. Jones is individually liable.
Further, individual defendants can be liable for retaliation. Wintaro v. Toshiba America Electronics Components, Inc., (9th Cir. 2001) 274 F3d 1276, 1288. Supervisors are persons and potentially liable for retaliation. Wintaro v. Toshiba America Electronics Components, Inc., (9th Cir. 2001) 274 F3d 1276, 1288. See also Liberto-Blanck v. City of Arroyo Grande (CD CA1999) 33 F. Supp.2d 1241, 1244;; Walrath v. Sprinkel (2002) 99 Cal.App.1237, 1242,
In Peterson v. Santa Clara Valley Medical Center (U.S.D.C. N.D. Cal. 2000) Defendants argued that Defendants…cannot be held personally liable under FEHA for retaliation. The Court held that [i]n Page v. Superior Court, 31 Cal.App.4th 1206, 37 Cal. Rptr.2d 529 (1995), the court held that supervisors can be held individually liable for claims of retaliation. In doing so, the Court rejected Defendants’ argument that the holding in Page had been eroded by Reno v. Baird, (1998) 18 Cal.4th 640.
Therefore, Defendant Mr. Jones can be held individually liable for retaliation against Plaintiff and the demurrer must be overruled.