Fired state Senate staffer’s retaliation suit can move forward, judge rules

SACRAMENTO -- A judge has allowed all but one claim to go forward in a retaliation case filed by a fired state Senate staffer who said she was raped by an Assembly employee.

Making permanent his tentative ruling issued late Monday, Sacramento County Superior Court Judge David I. Brown rejected three of four motions in a demurrer filing by the Senate. He barred only claims under the Legislative Employee Whistleblower Act, ruling it did not apply retroactively. Jane Doe v. California State Senate, 00232257 (Sac. Super. Ct., filed May 2, 2018).

The case has been seen by some as a test of how the Legislature would deal with sexual harassment and other workplace claims in the #MeToo era.

The plaintiff claimed she was raped by an Assembly staffer in December 2016 after a dinner and drinks with colleagues. She reported the attack to police, but charges were not filed.

She also told her immediate superiors within the Capitol. After being denied "reasonable accommodations" to deal with the trauma of the incident, such as having her alleged attacker barred from the Senate floor, she claims she was retaliated against and then fired in September 2017.

The Senate only challenged half of the eight claims in its demurrer, largely arguing public sector employers are not subject to several state labor laws. For instance, the Senate claimed "government agencies are not included within" a statute "absent express words to the contrary," citing Johnson v. Arvin-Edison Water Storage District (2009) 174 Cal.App.4th 729, 736.

"The vast majority of sections in the labor code do not state one way or the other whether they apply to the public sector," Brown told Sara A. Moore, who represented the Senate as senior counsel with Gordon Rees Scully Mansukhani LLP in San Francisco. "When legislative intent in this regard is not clear, it is up to the courts to decide the matter."

He wrote that the code section applies, absent convincing evidence public employers were meant to be excluded.

In court, Brown said the test of a labor law is whether enforcing it on a public entity would "infringe sovereign powers." But he said the Senate demurrer failed to show the code section did so.

The Senate's lead attorney in the case, Gordon Rees partner Marcie I. Fitzsimmons, said before the hearing she could not comment on active litigation."

But plaintiff's attorney Micha Star Liberty did speak beforehand, saying the Senate is using a "scorched earth" strategy in the case. This includes revealing the "Jane Doe" client's name in at least two court filings and attempting to subpoena records from Jane Doe's subsequent employers.

"Before the litigation was filed, counsel made clear their goal was to make litigation time-consuming, expensive and embarrassing for my client, and they've lived up to that," said the founder of Liberty Law Office in Oakland. "They've filed overbroad subpoenas to try to embarrass my client and find information that isn't tied to her allegations."

Brown dismissed claims under AB 403, the whistleblower law. It was signed into law in February after the period covered by the woman's claims. He gave leave to amend, though Liberty said she likely would not.

"Statutes do not operate retroactively 'unless the Legislature plainly intended them to do so,'" he wrote, citing Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243.

Reached earlier Tuesday, AB 403's author, Assemblywoman Melissa Melendez, R-Lake Elsinore, criticized the Legislature's attempts to exempt itself from labor laws. She also said she was told early in negotiations around the bill that she would never get it passed if she made it retroactive, though she declined to say by whom.

She added she introduced versions of the bill every year between 2014 and 2017.

"If they hadn't stonewalled me ... and let the bill go through in 2014, this court case wouldn't be playing out the way it is," Melendez said. "The law would have been in effect, and she would have been protected."