OFFICE OF THE COUNTY COUNSEL

1 LLOYD W. PELLMAN, County Counsel

RICHARD P. CHASTANG, Senior Deputy County Counsel
2 State Bar No. 133424
One Gateway Center Plaza, 24th Floor
3 Los Angeles, CA 90012
Tel. No. (213) 922-2503
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Attorneys for Defendant LOS ANGELES COUNTY METROPOLITAN
5 TRANSPORTATION AUTHORITY
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF LOS ANGELES
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11 GEORGE CARR, ) CASE NO. BC 190 840
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Plaintiff, ) AMENDED DEMURRER TO PLAINTIFFS
13 vs. FIRST AMENDED COMPLAINT
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LOS ANGELES COUNTY METROPOLITAN ) Date : 10/16/98
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TRANSPORTATION AUTHORITY; and Time: 8:30 a.m.
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16 DOES 1 through 100, inclusive, ) Dept.: 41
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Defendants. )
18 ) Trial Date: 7/6/99
19 Discovery Cutoff Date: 6/6/99
Motion Cutoff Date: 6/6/99
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TO PLAINTIFFS HEREIN AND TO PLAINTIFFS' ATTORNEYS OF RECORD:
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PLEASE TAKE NOTICE that on October 16, 1998 at 8:30 a.m., or as soon thereafter as the
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matter may be heard, in Department 41 of the Los Angeles Superior Court, located at 111 North Hill
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Street, Los Angeles, California, defendant LOS ANGELES COUNTY METROPOLITAN
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TRANSPORTATION AUTHORITY (MTA) will demur to the plaintiffs first amended complaint on
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file herein.
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This amended Demurrer will be made and based on the grounds that the first amended complaint
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and each of its causes of action fails to state facts sufficient to constitute any cause of action against
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MTA.
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This amended Demurrer will be made and based upon this Notice of hearing, the attached
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Demurrer to the Complaint, the instant Memorandum of Points and Authorities, as well all of the records
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and documents on file herein, and upon such oral and documentary evidence as may be presented at the
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hearing of this matter.
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DATED: September ___ , 1998 LLOYD W. PELLMAN
10 County Counsel
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By:
12 RICHARD P. CHASTANG
13 Senior Deputy County Counsel

14 Attorneys for Defendant MTA

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AMENDED DEMURRER TO THE FIRST AMENDED COMPLAINT FOR DAMAGES
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Defendant LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY
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(MTA) demurs to the plaintiffs first amended complaint herein on each and all of the following
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grounds:
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THE FIRST CAUSE OF ACTION
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1. The allegations of the first cause of action for wrongful termination - public policy fails to state
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any cause of action against these demurring defendants since plaintiff has failed to specifically allege
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violation of a fundamental public policy reflected in a statute or constitution. C.C.P. 430.10(e).
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THE SECOND CAUSE OF ACTION
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2. The allegations of the second cause for unlawful retaliation in violation of Government Code
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12940 fails to state any cause of action against MTA since plaintiff has failed to allege that he engaged in
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a protected activity. C.C.P. 430.10(e).
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WHEREFORE, defendant prays that this Demurrer be sustained without leave to amend, and that
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defendant be awarded its costs, and such other and further relief as the Court may deem just and proper.
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DATED: September ___ , 1998 LLOYD W. PELLMAN
18 County Counsel
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By:
20 RICHARD P. CHASTANG
21 Senior Deputy County Counsel

22 Attorneys for Defendant MTA

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER
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I. INTRODUCTION
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In this matter plaintiff, George Carr attempts to transform a garden-variety dispute with his
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supervisor into a retaliation/wrongful termination (public policy) lawsuit. This case arises from a claim of
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wrongful termination made by former Los Angeles County Metropolitan Transportation Authority
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(MTA) employee George Carr. Carr was hired as an Equal Employment Opportunity Representative in
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the MTA's Equal Opportunity Department in 1994; he contends that his job duties included investigating
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complaints of discrimination made by MTA employees as well as employees of contractors utilized by
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MTA. He adds that he began investigating complaints of discrimination against MTA contractor Tutor-
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Saliba-Perini (TSP). It is noteworthy that Carr does not allege that the TSPs alleged discriminatory
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actions were directed at him (since he was never employed by TSP) but only implicated employees of
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TSP.
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Carr alleges that he concluded that TSP was not in compliance with federal and state
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employment discrimination and harassment laws and forwarded his findings to his immediate supervisor,
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Herminio Vargas (First Amended Compl. (FAC) at 9). Following Vargass review plaintiff passed
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on his findings to Gail Charles, another supervisor for her review. Apparently Charles disagreed with
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Carr and it was her conclusion that TSP was in fact in compliance with federal and state discrimination
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laws. (FAC at 10). Ultimately, according to Carr, Charles instructed Carr to change the report to reflect
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her viewpoint. Finally, Carr contends that Charles instructed him to destroy his notes and draft reports
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regarding his investigation. Carr contends that he refused to comply with this order. Carrs employment
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was terminated in May of 1997.
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Without citing any specific statutory reference which encompasses his action Carr contends that
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MTAs action in terminating his employment was in contravention to the fundamental public policy of
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the State of California and of the United States regarding equality of opportunity in employment, and
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protection to those who perform or assist in investigations of violations of those laws. (FAC at 15).
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He concludes without citing any specific statutory language that this public policy is reflected somewhere
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in provisions of the California Government Code 12940 et seq. and Title VII of the Federal Civil
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Rights Act.
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Carrs threadbare complaint, however, is so completely vague and amorphous as not to plead any
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viable cause of action against MTA. First, although making passing references to violations of state and
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federal laws regarding discrimination the complaint never specifically identifies what provision specifically
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applies to the facts of this case consequently he has failed to state a wrongful discharge/public policy
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case. As to the second cause of action for retaliation in violation of Government Code 12940 Carr fails
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to sufficiently plead a prima facie case since he has failed to demonstrate anywhere in the complaint that
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he was engaged in a protected activity. Thus, that cause of action fails as well and the Demurrer should be
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sustained without leave.
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II. PLAINTIFF HAS NOT STATED A CAUSE OF ACTION FOR WRONGFUL
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TERMINATION BASED ON VIOLATION OF PUBLIC POLICY BECAUSE HE HAS FAILED
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TO SET FORTH A SPECIFIC CONSTITUTIONAL OR STATUTORY PROVISION WHERE
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THE PUBLIC POLICY IS EMBODIED.
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A. Public Policy Must Be Delineated in a Specific Constitutional or Statutory Provision.
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In a wrongful discharge action based on the employer's alleged violation of public policy, the
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underlying public policy must be delineated in constitutional or statutory provisions (Gantt v. Sentry
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Insurance (1992) 1 Cal. 4th 1083, 1095; Sequoia Ins. Co. v. Superior Court (1993) 13 Cal. App. 4th
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1472, 1480). Moreover, when a wrongful-discharge action alleges a violation of public policy, the
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discharge must affect a duty that inures to the benefit of the public at large, rather than to a particular
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employer or employee (Foley v. Interactive Data Corp. (1988) 47 Cal. 3d 654, 669; American
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Computer Corp. v. Superior Court (1989) 213 Cal. App. 3d 664, 667-669).
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In Gantt the California Supreme Court held that in wrongful termination actions based on
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violation of public policy, the public policy must derive from constitutional or statutory authority; i.e.,
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reliance on judicial or other nonlegislative source is insufficient to support this cause of action (1 Cal. 4th
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1083, 1095). The Court also held that courts in wrongful discharge actions may not declare public
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policy without a basis in either constitutional or statutory provisions and that a public-policy exception
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carefully tethered to fundamental policies that are delineated in constitutional or statutory provisions
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strikes the proper balance among the interests of employers, employees, and the public .(1 Cal. 4th 1083,
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1095).
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In Sequoia Ins. Co. a former employee brought a wrongful termination action against the
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employer after his termination allegedly for disagreeing with the perceived overall company practice by
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the claims department of inflating case reserves. He asserted that Proposition 103, which was adopted by
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voters in the 1988 general election for the express purpose of reducing and controlling insurance rates,
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created a public policy prohibiting the reserve practice. Defendants unsuccessfully moved for summary
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judgment on the ground that plaintiff failed to state a factual or legal foundation for a wrongful
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termination claim based on public policy, then sought a writ of mandate in the court of appeal.
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The court of appeal granted the writ and directed the trial court to vacate its order denying the
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motion for summary adjudication of the public policy cause of action and to enter a new order granting
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the motion. The court rejected plaintiff's contention that Gantt permitted a public policy to be merely
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derived from or based on a statute, holding rather that under Gantt, the fundamental policies
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underlying the public policy exception must be delineated in a constitutional or statutory provision. The
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court stated that a requirement that a policy be delineated entails more specificity than merely being
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derived from or based on its source, i.e., delineate means to describe in detail. The court
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stated that although one should not assume that the employer's precise act must be specifically
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prohibited for the public policy exception to apply, a constitutional or statutory provision must sufficiently
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describe the type of prohibited conduct to enable an employer to know the fundamental public policies
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that are expressed in that law. The court noted that plaintiff could not point to a specific statement in
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Proposition 103 or any other statute that restricted the amount of reserves an insurer may set aside for
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the anticipated cost of a pending claim, and therefore no public policy could be inferred (13 Cal. App.
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4th 1472, 1480).
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Similarly plaintiff herein cannot point to a specific statement in either state or federal law which
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governs the preparation of civil rights compliance reports involving MTA contractors. All he claims is
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that his duties involved investigating complaints of discrimination made by employees of MTA
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contractors. In fact plaintiff can cite to no state or federal statute which empowers MTA to investigate,
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report on and take action against contractors who may be found to have discriminated against their
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employees. Such investigatory and enforcement powers are exclusively possessed by either the States
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Department of Fair Employment and Housing or the federal Equal Employment Opportunity
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Commission, and not by the MTA.
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Plaintiff whines that his supervisor Gail Charles instructed him to destroy his notes and draft
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reports regarding his investigation of TSP. Assuming for the purposes of this demurrer that this statement
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is true what law has been violated? Of course, plaintiff has not (and cannot) cite any State or Federal
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statute which mandates that MTA retain records of informal investigations concerning its contractors.
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Plaintiffs bare-bones, shoe-string complaint fails to cite any specific state or federal law where the
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purported public policy is embodied. As a result of this glaring defect the demurrer should be sustained
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without leave to amend.
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II. PLAINTIFF HAS FAILED TO SET FORTH SUFFICIENT FACTS TO SUPPORT A
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CAUSE OF ACTION FOR RETALIATION.
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Retaliation claims under Californias Fair Employment and Housing Act (FEHA) "are analogous
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to federal [Title VII] claims . . ., and are evaluated under federal law interpreting Title VII cases.
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[Citations.] The elements of Title VII and FEHA claims require that (1) the plaintiff establish a prima
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facie case of retaliation, (2) the defendant
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articulate a legitimate non-retaliatory explanation for its acts, and (3) the plaintiff show that the
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defendant's proffered explanation is merely a pretext for the illegal termination. [Citations.]" Flait v.
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North American Watch Corp. (1992) 3 Cal. App. 4th 467, 475-476. "To establish a prima facie case, the
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plaintiff must show that he engaged in a protected activity, his employer subjected him to adverse
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employment action, and there is a causal link between the protected activity and the employer's
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action. [Citations.]" Id.
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A. The Fair Employment And Housing Act - Government Code 12940
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The broad purpose of the FEHA is to safeguard an employee's right to seek, obtain, and hold
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employment without experiencing discrimination on account of race, religious creed, color, national
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origin, ancestry, physical handicap, medical condition, marital status, sex, or age. Government .Code,
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12920; Stevenson v. Superior Court (1997) 16 Cal.4th 880, 891.
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FEHA (Government Code 12940(f))contains two separate clauses which prohibit an employer
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from retaliating against an employee an "opposition clause," which prohibits discrimination or
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retaliation against an employee because the employee "has opposed any practices forbidden under this
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part [FEHA]," and a "participation clause," which prohibits discrimination or retaliation against an
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employee because the employee "has filed a complaint, testified, or assisted in any proceeding under this
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part [FEHA]."
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Carr asserts that his action fell under the opposition clause of FEHA since he allegedly opposed
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actions of the MTA which contravened federal and state laws regarding equality of opportunity in
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employment. FAC at 15. However, as the Ninth Circuit has correctly observed regarding Title VII:
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By the terms of the statute, however, not every act by an employee in opposition to racial discrimination
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is protected. The opposition must be directed at an unlawful employment practice of an employer, not an
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act of discrimination by a private individual. Silver v. KCA Inc., 586 F.2d 138 (9th Cir. 1978). In the
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instant case Carr contends that his conduct in investigating discrimination claims against TSP constituted
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a protected activity. Thus, it is clear that the alleged discriminatory conduct that Carr was investigating
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had no relation to any actual or apparent employment practice of his employer, the MTA, but focused
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solely on the conduct of MTAs contractor, TSP, a private corporation. Under the holding in Silver,
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therefore, Carrs complaint is not actionable.
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B. Federal Decisions Have Held That Insisting Upon Complying With Affirmative Action
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Programs Does Not Qualify as a Protected Activity.
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As a general rule California courts have looked to federal decisions under title VII for assistance
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in interpreting FEHA where appropriate. County of Alameda v. Fair Employment & Housing Com.
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(1984) 153 Cal.App.3d 499. Several federal decisions have dealt with the issue regarding whether an
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employee is engaging in protected activity under Title VII when he complains of conduct pertaining to
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compliance with anti-discrimination/affirmative action laws.
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In Holden v. Owens-Illinois 793 F.2d 745 (5th Cir. 1986) cert. den. 479 U.S. 1008 (1986) which
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is quite similar to the facts of this case, the plaintiff, like Carr, was employed as an equal opportunity-
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affirmative action officer. After just six weeks in her position Holden was fired as a result of what she
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contends was retaliation for her aggressive efforts in implementing affirmative action programs. Holden
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contended that her conduct constituted protected activity under Title VII. In affirming the districts court
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order granting defendants motion to dismiss, the Fifth Circuit noted: We hold that plaintiff's attempts
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to implement affirmative action plans which would comply with Executive Order No. 11,246 do not
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qualify as protected activity under the opposition clause. Holden at 746. Finally the Court observed
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that: "An employee does not receive special protection . . . simply because the employee handles
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discrimination complaints or works on affirmative action matters." Holden, at 751.
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A similar result was reached in Johnson v. Honeywell Information Systems Inc. 955 F.2d 409 (6th
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Cir. 1991). Plaintiff, Johnson, was hired by Honeywell as a field relations manager in 1976. Her duties
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included providing assistance to Honeywell's branch managers in establishing affirmative action programs,
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responding to Equal Employment Opportunity Commission charges, hirings, and other employment
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matters. In 1984 she was discharged for performance related reasons. Johnson strongly disputed this
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decision and contended that her dismissal was retaliatory and had arisen from conflicts with other
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Honeywell managers pertaining to affirmative action goals and the resistance of such managers to attain
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those goals. Johnson filed an action in a Michigan court alleging retaliatory discharge in violation of
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Michigans civil rights laws and breach of contract. Honeywell removed the action to federal court on
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diversity grounds. In affirming the lower courts grant of a directed verdict as to the retaliation claim the
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Sixth Circuit addressed the question of whether Johnson had presented sufficient facts to support her
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claim that she had engaged in protected activity:
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24 In this case, Johnson relies upon her memorandum to her supervisor
Gavigan in which she complained of the resistance of divisional managers
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because affirmative action is not required under the Act. Since the
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complaints lodged by Johnson in the interoffice memorandum did not
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Johnson at p. 415.
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See also Smith v. Singer Co., 650 F.2d 214, 217 (9th Cir. 1982) (holding that equal opportunity
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coordinator did not engage in statutorily protected activity when he filed an action against his employer
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"in support not of his own rights but of the perceived rights of those with whom it is his duty to deal on
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behalf of his company").
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Johhson, Holden and Silver closely match the facts of this case and the rationale adopted by each
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of those decisions should be applied in this case. Carr is unable to cite any provision within FEHA that
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requires affirmative action and imposes specific obligations on MTA to investigate its contractors to
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ensure that they are maintaining or enforcing anti-discrimination/affirmative action programs. Moreover,
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assuming Carr can cite a statute which supports the investigatory nature of duties he still is unable to
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state a claim because his conduct in disagreeing with his supervisor regarding whether discrimination
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existed at TSP and his refusal to destroy his notes and draft reports simply did not rise to the level of
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protected activity under FEHA.
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C. Carr Has Failed To Plead Sufficient Facts To Establish That He Participated in an
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Investigation Under FEHA That Resulted in His Adverse Employment Action.
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As noted above protected activity can also take the form of participation in a investigation under
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FEHA. Carr has pleaded no facts to establish that he filed a complaint, testified, or assisted in any
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proceeding under this part [FEHA] and that he was retaliated against for so doing. Government Code
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12940(f).
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VI. CONCLUSION
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Carrs complaint fails to allege any cogent violation of public policy since he has failed to set forth
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a specific statement in statute or constitution which covers the actions he sets forth in the complaint.
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The complaints passing reference to state and federal civil rights laws is insufficient as a matter of law to
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support a wrongful termination - public policy cause of action. Under Gantt he is required to allege a
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specific statutory reference where the public policy is contained.
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Finally, he has failed to plead a retaliation cause of action because there are not facts in the
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complaint which establish that he was engaged in protected activities..
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DATED: September ___ , 1998 LLOYD W. PELLMAN
4 County Counsel
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By:
6 RICHARD P. CHASTANG
7 Senior Deputy County Counsel

8 Attorneys for Defendant MTA

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2 PROOF OF SERVICE
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4 STATE OF CALIFORNIA, County of Los Angeles:
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MARION HOOKS states: I am and at all times herein mentioned have been a citizen of the United
6 States and a resident of the County of Los Angeles, over the age of eighteen years; not a party to the within
7 action; my business address is One Gateway Plaza, City of Los Angeles, State of California.

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That on July 6, 2017, I served the documents[s] described as AMENDED DEMURRER TO
9 FIRST AMENDED COMPLAINT upon Interested Party(ies) by placing a true copy thereof enclosed in
10 sealed envelope[s] addressed as follows:

11 MANUEL H. MILLER, ESQ.

12 LAW OFFICES OF MANUEL H. MILLER
19935 VENTURA BLVD., THIRD FLOOR
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WOODLAND HILLS, CA 91364
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X (BY MAIL) as follows: I am readily familiar with this agencys practice of collection and
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processing correspondence for mailing. Under that practice it would be deposited with the U.S.
16 Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California in the
17 ordinary course of business. I am aware that on motion of the party served, service is presumed
invalid if postal cancellation date or postage meter date is more than one day after the date of deposit
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for mailing in the affidavit.
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(BY PERSONAL SERVICE) I delivered such envelope by hand to the office of the addressee.
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21 X (STATE) I declare under penalty of perjury, under the laws of the State of California, that the
22 foregoing is true and correct.

23 (FEDERAL) I declare that I am employed in the Office of a member of the bar of this Court at
24 whose direction the service was made.

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I declare under penalty of perjury that the foregoing is true and correct. Executed July 6, 2017, at
26 Los Angeles, California.
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MARION HOOKS
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