JASMINE DAVIS v. CADENCE EDUCATION, LLC
No. 2:23-cv-02975-DC-CKD
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 10, 2025
Dena Coggins, United States District Judge
Document 20
(Doc. No. 15)
This matter is before the court on the motion to dismiss filed by Defendant Cadence Education, LLC (“Cadence“). (Doc. No. 15.) Pursuant to Local Rule 230(g), the pending motion was taken under submission to be decided on the papers. (Doc. No. 16.) For the reasons explained below, the court will grant Defendant‘s motion to dismiss, with leave to amend.
BACKGROUND
Plaintiff Jasmine Davis filed this action in the Sacramento County Superior Court against Defendant Cadence, her former employer, and Does 1–20 on October 17, 2023. (Doc. No. 1 at 17.) On December 20, 2023, Defendant removed this action to this court. (Doc. No. 1.) Plaintiff filed a first amended complaint as a matter of course pursuant to
In December 2017, Plaintiff, an African-American woman, started working at Cadence Academy as a pre-school teacher. (Id. at ¶¶ 14, 74.) Plaintiff‘s older child began attending Cadence Academy shortly after Plaintiff started working there. Plaintiff‘s younger child, a son, began attending Cadence Academy in October 2018. (Id. at ¶ 15.)
In October 2019, Katie Salvino, another Cadence Academy employee and daughter of the Cadence Academy director Deborah Salvino, recorded a video of herself holding Plaintiff‘s then thirteen-month-old son and “manipulat[ing] the baby‘s body to dance to a rap song.” (Id. at ¶ 16.) The video showed Plaintiff‘s son “being jerked around and lifted to dance.” (Id.) Another Cadence Academy employee, Ashley Charity, posted the video of Plaintiff‘s son and Katie Salvino on Facebook and sent the video to Plaintiff. (Id.)
According to Plaintiff, Katie Salvino and Ashley Charity “have cared for many children of all races during their employment with Cadence,” and Plaintiff is not aware of them ever “forc[ing] any other infants to dance and then tak[ing] videos of them, except for [Plaintiff‘s son], who is African-American.” (Id. at ¶ 17.) Plaintiff believed the mistreatment of her son would not have occurred to children of non-employees. (Id. at ¶ 18.) Plaintiff believed it was illegal for staff at Cadence Academy to mistreat her son. (Id. at ¶ 19.) The video recording was taken during work hours, and the employees responsible were never disciplined for their actions. (Id.)
Plaintiff subsequently directed her mother, Rhonda Davis, to report the Cadence Academy employees’ actions to the California Department of Social Services (“DSS“). (Id. at ¶ 20.) Plaintiff was concerned about retaliation if she reported the incident herself. (Id.) DSS contacted Defendant regarding the incident and interviewed multiple employees. (Id.) Defendant and its employees were informed that Plaintiff‘s mother was the one who filed a complaint with DSS. (Id. at ¶ 21.) Defendant was eventually cited for a “violation of personal rights of a child.” (Id.)
Plaintiff noticed that after her mother reported the incident to DSS, “many of her coworkers and supervisors began to treat her differently.” (Id. at ¶ 22.) Prior to the incident and reporting to DSS, Plaintiff often socialized with her coworkers at work and after work, and
Plaintiff reported the actions of her co-workers to her supervisor, director Deborah Salvino, but the “ostracization” of Plaintiff and neglect of her children continued. (Id. at ¶ 29.) One of Plaintiff‘s coworkers, identified as Danielle, informed her that “everyone was mad at Plaintiff for her mother‘s reporting of the school‘s actions regarding her son.” (Id. at ¶ 26.) Danielle also informed Plaintiff that Deborah Salvino “told all the employees not to speak to Plaintiff because they could not trust her.” (Id. at ¶ 27.) Plaintiff believed Danielle because when Deborah Salvino was upset with other employees, she advised Plaintiff not to speak with them. (Id. at ¶ 28.)
On October 17, 2019, Plaintiff discussed the harassment and retaliation she experienced with Deborah Salvino. (Id. at ¶ 29.) Plaintiff told her the “exploitation” of her son in a racial manner by Katie Salvino and subsequent lack of discipline was unacceptable. (Id.) Plaintiff also told Deborah Salvino that this caused “a significant amount of stress and emotional pain because it was obvious to Plaintiff that they did not care about the mistreatment of Plaintiff‘s son in a classroom where he should have been safe.” (Id.) Deborah Salvino denied that Plaintiff was retaliated against or harassed and did not offer to protect Plaintiff or her children. (Id. at ¶ 30.) Also on October 17, Deborah Salvino told employees that Plaintiff was “throwing them under the bus.” (Id. at ¶ 33.) Plaintiff believes that Katie Salvino “would not have committed her discriminatory actions against [Plaintiff‘s son] if he were not African-American, as rap music is primarily performed by African-American artists.” (Id. at ¶ 32.)
On October 23, 2019, a coworker told Plaintiff that her children‘s teachers at Cadence Academy said “they did not want to do anything regarding [Plaintiff‘s] children because they did not want to deal with Plaintiff or get reported by her.” (Id. at ¶ 38.) That same day, Plaintiff submitted a resignation letter to Deborah Salvino, reminding her of the issues discussed in their
On October 16, 2022, Plaintiff filed an administrative complaint against Defendant with the California Civil Rights Department (“CRD“) (formerly, DFEH), and received a right-to-sue letter from the CRD that same day. (Doc. No. 1 at 35–39.)
Based on the allegations in her SAC, Plaintiff brings the following three causes of action pursuant to the Fair Employment and Housing Act (“FEHA“) against Defendant: (claim 1) retaliation; (claim 2) failure to prevent harassment, discrimination, or retaliation; and (claim 3) harassment. (Doc. No. 14 at 6-9.)
On May 17, 2024, Defendant filed the pending motion to dismiss all claims in this action with prejudice. (Doc. No. 15.) Plaintiff filed an opposition to that motion on May 31, 2024. (Doc. No. 17.) Defendant filed a reply thereto on June 10, 2024. (Doc. No. 18.)
LEGAL STANDARD
A motion to dismiss under
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
ANALYSIS
The court will address the sufficiency of Plaintiff‘s allegations as to each of her claims in turn below.
A. Retaliation (Claim 1)
The elements of a FEHA retaliation claim are as follows: (i) the plaintiff engaged in a protected activity; (ii) the employer subjected the plaintiff to an adverse employment action; and (iii) a causal link existed between the protected activity and the employer‘s action. See Dawson v. Entek Int‘l, 630 F.3d 928, 936 (9th Cir. 2011); Yanowitz v. L‘Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005) (citing Iwekaogwu v. City of L.A., 75 Cal. App. 4th 803, 814–15 (1999)); see also Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 354 (2000) (“Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes.“).
1. Protected Activity
“Under FEHA, an employee engaged in a protected activity if their actions opposed any practice or conduct the employee reasonably believed was unlawful and the employer was aware the opposition was based on protesting the perceived unlawful conduct.” Wilson v. City of Fresno, 763 F. Supp. 3d 1073, 1104 (E.D. Cal. 2025) (citing Yanowitz, 36 Cal. 4th at 1042); see also Ayala v. Frito Lay, Inc., 263 F. Supp. 3d 891, 911 (E.D. Cal. 2017).
As an initial matter, Plaintiff alleges she directed her mother to report the incident with her son to DSS, rather than report it herself, because she feared retaliation in her workplace. (Doc. No. 14 at ¶ 20.) As noted above, California courts look to federal precedent under Title VII when applying California‘s employment statute FEHA, due to the similarities with those laws. See Guz, 24 Cal. 4th at 354; Ambat v. City & Cnty. of S.F., 757 F.3d 1017, 1023 n. 2 (9th Cir. 2014) (conducting analysis of federal discrimination and FEHA claims according to Title VII case law because “FEHA is interpreted consistently with Title VII“).
In the Title VII retaliation context, district courts have found that a plaintiff may engage in a protected activity even where that activity is done by another person acting on the plaintiff‘s behalf. See, e.g., Palomo v. City of Sanger, No. 14-cv-01769-TLN-SAB, 2015 WL 5734421, at *7 (E.D. Cal. Sept. 28, 2015) (finding plaintiff engaged in a protected activity for the purposes of a Title VII retaliation claim where plaintiff‘s husband filed a complaint against defendant on behalf of and for the benefit of plaintiff, and defendant had reason to believe plaintiff assisted in the protected activity). Based on Plaintiff‘s allegations regarding her supervisor‘s and coworkers’ reactions to the report made to DSS, a reasonable inference can be drawn that Defendant‘s employees had reason to believe Plaintiff participated in reporting the incident with Plaintiff‘s son to DSS. (Doc. No. 14 at 4–5.)
In addition to indirectly reporting the incident to DSS, Plaintiff has also alleged she
However, the court is persuaded by Defendant‘s argument that even if Plaintiff‘s mother‘s complaint can be properly attributed to Plaintiff, the contents of the DSS complaint and Plaintiff‘s direct complaint to her supervisor do not concern an act forbidden by FEHA. (Doc. No. 15 at 6.) FEHA prohibits employment practices that involve discrimination, harassment, and retaliation based on a protected class. McDonald v. Antelope Valley Cmty. Coll. Dist., 45 Cal. 4th 88, 106 (2008). FEHA makes it unlawful for “an employer, because of the race .. of any person. . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”
Plaintiff conclusively states in her opposition that her belief that “Cadence‘s employees’ discrimination of Plaintiff and her son constituted unlawful employment practices,” the subject of her complaint to DSS and her supervisor, was reasonable. (Doc. No. 17 at 7.) However, Plaintiff in her opposition provides no argument nor applicable legal authority in support of her assertion that her belief that the treatment of her son constituted an unlawful employment practice was reasonable. Further, Plaintiff‘s objection to the treatment of her son objectively did not concern an unlawful employment practice under FEHA. See Dinslage v. City & Cnty. of S.F., 5 Cal. App. 5th 368, 372 (2016) (holding that plaintiff‘s opposition to employer‘s discriminatory policies and
Therefore, the court finds that the Plaintiff has not sufficiently pled she engaged in a protected activity for the purposes of stating a claim for retaliation under FEHA.
2. Adverse Employment Action
To plead a claim for retaliation under FEHA, Plaintiff must also allege she was subjected to an adverse employment action. Yanowitz, 36 Cal. 4th at 1042. Under California law, an adverse employment action occurs when action is taken that “materially affect[s] the terms, conditions, or privileges of employment.” Flores v. City of Westminster, 873 F.3d 739, 748 (9th Cir. 2017) (quoting Yanowitz, 36 Cal. 4th at 1052). Such actions include, but are not limited to, termination and demotion. Yanowitz, 36 Cal 4th at 1054. “If proven, constructive discharge is legally equivalent to a termination, and therefore can constitute an adverse employment decision . . . .” Grimes v. W. Grp. Co., 26 F. App‘x 641, 643 (9th Cir. 2001).2
“Constructive discharge occurs when the employer‘s conduct effectively forces an employee to resign.” Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1244 (1994). To allege a constructive discharge has occurred, a plaintiff must plead “that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee‘s resignation that a reasonable employer would realize that a reasonable person in the employee‘s position would be compelled to resign.” Id. at 1251. For an employment situation to be deemed intolerable, “adverse working conditions must be unusually aggravated or amount to a continuous pattern.” Id. at 1247. Courts consider “whether the resignation was coerced,” rather than “one rational option for the employee.” Id. at 1246. Indeed, a claim for
In its motion, Defendant argues Plaintiff fails to allege she experienced an “adverse employment action which materially affected the terms and conditions of her employment,” as required for a FEHA retaliation claim. (Doc. No. 15 at 6.) Plaintiff responds that she alleges in her SAC she was constructively discharged, which is an adverse employment action. (Doc. No. 17. at 7.) Plaintiff argues she has sufficiently alleged that Defendant created hostile working conditions based on her allegations that her children were neglected, that her coworkers were instructed by management to ignore her, and that any reasonable employee in those circumstances would resign. (Id.) Specifically, Plaintiff alleges in her SAC that the intolerable working conditions that led her to resign her position included her coworkers no longer inviting her to social events at and after work, her children being “neglected” at the daycare, and her supervisor‘s instruction to other employees not to associate with Plaintiff. (Doc. No. 14 at 4.) Although not entirely clear from the SAC, these events appear to have occurred during less than a one-month period in October 2019. (Id. at 5-6.)
Besides pointing to these allegations, however, Plaintiff does not cite to any decisions in which courts have found comparable allegations sufficient to plead constructive discharge. The court does not find the employment conditions as Plaintiff describes them in her SAC, which occurred over a brief period, to rise to the level of intolerable such that her resignation would be deemed coerced. See Crowe v. Evergood Assocs., LLC, No. 05-cv-01627-FCD-EFB, 2007 WL 869964, at *6 (E.D. Cal. Mar. 21, 2007) (“Plaintiff‘s vague statement that he was laughed at by his fellow employees is insufficient evidence for the court to find his work environment was so extraordinary and egregious that a reasonable person would have had no alternative but to leave [his employment].“). Nor do Plaintiff‘s allegations provide an adequate basis from which the court could infer that “a reasonable employer would realize that a reasonable person in [Plaintiff‘s] position would be compelled to resign.” See Turner, 7 Cal. 4th at 1251. For example, Plaintiff does not describe how not being invited to social events impacted her ability to perform and complete her work duties. Plaintiff describes a general breakdown in trust, arguing that
Because Defendant‘s motion to dismiss Plaintiff‘s FEHA retaliation claim will be granted on the basis of the first two elements, the court need not address the parties’ arguments with regard to the third requisite element of causation. For these reasons, Defendant‘s motion to dismiss Plaintiff‘s first claim for retaliation in violation of FEHA is granted. In light of the circumstances of the incident described in Plaintiff‘s allegations, the court doubts that Plaintiff could plausibly state a claim for retaliation under FEHA. However, because it is possible that Plaintiff may be able to allege other relevant facts in a further amended complaint, the court will dismiss Plaintiff‘s FEHA retaliation claim with leave to amend out of an abundance of caution.
B. Harassment - Hostile Work Environment (Claim 3)
The elements of a FEHA harassment claim are as follows: (1) the plaintiff is a member of a protected class, (2) the plaintiff was subjected to harassment because of that membership, and (3) “the harassment was so severe that it created a hostile work environment.” Golden v. Microsoft Corp., 727 F. Supp. 3d 867, 872 (N.D. Cal. 2024) (citing Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir. 2013)). To create a hostile work environment, the racially objectionable conduct must be “objectively and subjectively offensive.” Hughes, 46 Cal. 4th 1043, 1044 (2009).
Defendant argues that Plaintiff does not allege in her SAC “that Cadence committed a single act of harassing conduct against her because of her race.” (Doc. No. 15 at 7.) Defendant contends that at most, Plaintiff alleges two incidents of harassing conduct—that her son was made to dance to a rap song on video and that she was ostracized by coworkers—neither of which are “severe []or pervasive.” (Id. at 8.) Plaintiff argues in opposition that the illegal harassment and
First, the parties do not dispute that Plaintiff has sufficiently alleged she is a member of a protected class as an African-American woman. (Doc. Nos. 14, 15 at 7.)
Second, the parties do however dispute whether Plaintiff has sufficiently alleged that she was subjected to harassment because of her race. In the harassment context, the analysis “focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.” Roby v. McKesson Corp., 47 Cal. 4th 686, 706 (2009) (quoting
As currently pled, the court finds Plaintiff has not stated a cognizable claim for race-based harassment under FEHA. See Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264, 283 (2006) (“With respect to the pervasiveness of harassment, courts have held an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.“); Lelaind v. City & Cnty. of S.F., 576 F. Supp. 2d 1079, 1102 (N.D. Cal. 2008) (“None of the actionable conduct involves the type of actions typical of hostile work environment claims, for example, racial slurs, sexist remarks, racially or sexually derogatory acts, physical threats, touching, or violence.“). The court will therefore grant Defendant‘s motion to dismiss plaintiff‘s FEHA harassment claim.
As mentioned in the court‘s discussion of Plaintiff‘s retaliation claim, the court is skeptical that in light of the alleged circumstances that Plaintiff could plausibly state a claim for harassment on the basis of race. Out of an abundance of caution, however, the court will dismiss Plaintiff‘s third claim for harassment with leave to amend.
C. Failure to Prevent Harassment, Discrimination, or Retaliation (Claim 2)
Under FEHA, it is unlawful for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”
Though California courts have held the failure to prevent harassment, discrimination, or retaliation claim is a distinct unlawful employment practice, employers may only be liable for failing to prevent discrimination where discriminatory actions took place. Dep‘t of Fair Emp. & Hous. v. Lucent Techs., Inc., 642 F.3d 728, 748 (9th Cir. 2011) (citations omitted). Indeed, “a failure to prevent discrimination claim is essentially derivative of a discrimination claim.” Moss v. City & Cnty. of S.F., 714 F. Supp. 3d 1167, 1185 (N.D. Cal. 2024) (quoting Achal, 114 F. Supp. 3d at 804).
Here, because Plaintiff fails to sufficiently state a claim for retaliation and harassment, her
CONCLUSION
For the reasons explained above:
- Defendant‘s motion to dismiss (Doc. No. 15) is GRANTED, with leave to amend;
- Within twenty-one (21) days of the date of entry of this order, Plaintiff shall file a third amended complaint; and
- Plaintiff is warned that her failure to comply with this order may result in dismissal of this action due to Plaintiff‘s failure to prosecute and failure to state a cognizable claim.
IT IS SO ORDERED.
Dated: June 9, 2025
Dena Coggins
United States District Judge