Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC360391, John Shepard Wiley, Jr., Judge.
Jennifer Kramer Legal, Jennifer Kramer and Judith Wiederhorn for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Elizabeth Hong, Brian D. Vaughan, Ivan H. Torres, Alicia M. B. Fowler, Michael E. Whitaker and Leah C. Gershon, Deputy Attorneys General, for Defendant and Respondent State of California Department of Justice.
Manning & Marder, Kass, Ellrod, Ramirez, Christy L. O’Donnell and Candace E. Kallberg for Defendant and Respondent City of La Verne.
KRIEGLER, J.
Plaintiff and appellant Christine Dorman appeals from a judgment following the granting of a motion for summary judgment in favor of defendant and respondent State of California Department of Justice (DOJ) and a judgment following the granting of a motion for summary adjudication in favor of defendant and respondent City of La Verne (City) in this action for employment discrimination and retaliation. Dorman worked as an administrative assistant for the Los Angeles Interagency Metropolitan Crime Task Force (LA Impact). Dorman contends triable issues of fact exist as to the following issues: 1) whether an employment relationship existed between Dorman and the DOJ, either directly, indirectly, or based on the doctrine of respondeat superior; 2) whether an employment relationship existed between Dorman and the City; and 3) whether the City and the DOJ are liable for intentional infliction of emotional distress even in the absence an employment relationship. We conclude neither the City nor the DOJ are liable for intentional infliction of emotional distress. There is no evidence that the DOJ exercised control or interfered with respect to Dorman’s employment, and therefore, Dorman cannot maintain employment-related causes of action against the DOJ. The judgment in favor of the DOJ is affirmed. Triable issues of fact exist as to whether the City was Dorman’s employer, and therefore, the judgment in favor of the City is reversed.
FACTS AND PROCEDURAL BACKGROUND
L.A. Impact Organization
L.A. Impact is an interagency law enforcement task force that was created in 1991 to coordinate the efforts of police departments and other law enforcement agencies in Los Angeles County to fight drug trafficking, money laundering, and terrorism. Forty-eight member agencies have approved the memorandum of understanding (MOU) which created L.A. Impact as a separate entity authorized to employ municipalities’ police powers and public funds. (McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (2005) 134 Cal.App.4th 354, 359-360.)
L.A. Impact is governed by a board of directors and executive council. Any member agency may nominate qualifying individuals for consideration by the L.A. Impact hiring panel and executive council for the position of Executive Director of L.A. Impact. The Executive Director of L.A. Impact happens to have always been a “special agent in charge (SAC)” employed by the DOJ, although an employee of another agency once served as interim acting Executive Director.
L.A. Impact is funded through public grants routed through member cities, equipment contributed by member cities, and proceeds from assets seized from the targeted activities. L.A. Impact’s main office is in Commerce. The office space and supplies such as telephone equipment are provided by the DOJ at its Bureau of Narcotics Enforcement (BNE) Los Angeles Regional Office (LARO).
Each member agency loans sworn officers to work at L.A. Impact. The salary and benefits of the sworn L.A. Impact personnel are set by the officer’s respective law enforcement agency employer. L.A. Impact does not make personnel decisions with respect to the sworn officers, nor provide input into salary or benefits of the sworn officers.
In February 1996, Dorman answered a newspaper ad for an administrative position. After an initial screening by a temporary agency, she interviewed with L.A. Impact employees. She was hired to work as an administrative assistant and office manager at L.A. Impact’s Burbank office. The temporary agency paid the salaries of L.A. Impact’s civilian employees, processed their paychecks, and administered their benefits. Dorman received outstanding performance reviews from her supervisors every year.
The City Agrees to Provide Personnel Services
In 2003, the City entered into an agreement with L.A. Impact to administer L.A. Impact funds, prepare and issue paychecks to L.A. Impact employees, and process benefits for the employees. The City prepared employment agreements for the civilian employees. Dorman entered into a one-year employment contract with the City. Dorman and L.A. Impact’s Chief Financial Officer Rea Pfeiffer worked together to identify benefits for civilian employees within L.A. Impact’s budget, which Dorman negotiated with L.A. Impact Executive Director Jerry Hunter.
Dorman’s employment contract with the City set forth the compensation and benefits that she was entitled to receive for her services as an administrative assistant and office manager, working under the direction of L.A. Impact and the Executive Policy Board representing the Los Angeles County Police Chief’s Association. The agreement provided that any costs from Dorman’s participation in the retirement system would be paid by L.A. Impact, any employer contribution for Medicare and any employer contribution toward long-term disability premiums would be paid by the City, and any costs resulting from Dorman’s participation in benefit plans would be paid by the City and reimbursed by L.A. Impact. The agreement allowed Dorman to participate in the City’s deferred compensation plan at her expense, provided for overtime pay in compliance with L.A. Impact’s policy, and set forth her work schedule.
The agreement required that Dorman adhere to the regulations set forth in the L.A. Impact policy manual and work under the direction of the Executive Director of L.A. Impact. The agreement further stated that any complaints or grievances would be handled under procedures outlined by L.A. Impact, and Dorman had no rights to permanent employment or to the appeals process provided under the City’s personnel policies.
The City could grant one year extensions as it deemed warranted, in its discretion, and either party could terminate the agreement with 30 days notice. Dorman signed the agreement at the City’s office. The agreement was also signed by Robert Russi as the City’s personnel officer. There was no provision for signature by L.A. Impact. Dorman executed an extension of her contract the following year.
The City paid Dorman’s salary and benefits and was reimbursed by L.A. Impact monthly. The City issued Dorman’s paychecks and her W-2 tax forms. Her paychecks included the City’s mission statement and the City was listed as her employer on her W-2 forms. Dorman’s supervisors began completing performance evaluations using the City’s forms.
Events Following William Telish’s Appointment as Executive Director
In the fall of 2004, William Telish, who is a SAC within the DOJ BNE, applied for the position of L.A. Impact Executive Director. DOJ Assistant Chief Hunter, who formerly served as L.A. Impact Executive Director, is Telish’s supervisor at the DOJ. Telish interviewed with members of the L.A. Impact executive board and took an oral board examination administered by Chief Ron Ingles. In October 2004, the DOJ assigned Telish to serve as Executive Director of L.A. Impact. As Executive Director of L.A. Impact, Telish reports to the L.A. Impact executive board. Hunter is also a member of the L.A. Impact executive board.
On December 7, 2004, Dorman and Pfeifer attended a meeting with a union organizer to discuss the possibility of unionizing the civilian staff at L.A. Impact. The following day, one of Dorman’s supervisors at the Burbank office told her to watch her back. He said that Telish had called to ask whether Dorman had attended the meeting or engaged in any union activity and had stated that anyone who tried to unionize the support staff would be fired. Pfeiffer’s employment was terminated in March 2005, and Dorman was concerned for her job. In April 2005, Dorman’s supervisor told her that Telish had said she was “a pain in the ass,” and after he got rid of Pfeiffer, he was coming after her.
The Palos Verdes Estates Police Department (PVPD) loaned employee Darin Kasten to act as an L.A. Impact Deputy Director. Kasten’s office was in the Commerce office.
Telish entered into a professional services agreement with Eric Anderson to work for L.A. Impact as an independent contractor for a one-year term. Anderson agreed to provide consulting, research, training, and supervision in areas related to administrative support. Anderson’s office was also in the Commerce office. One of Anderson’s responsibilities was to assign groups to administrative assistants.
In May 2005, the LAPD loaned 25-year LAPD veteran Lieutenant Victor Ramirez to L.A. Impact to oversee groups in Burbank and Commerce. Ramirez’s assistant for the Burbank group was Detective Level III Fred Davis.
Dorman Takes Medical Leave for Surgery
Dorman was concerned that her employment contract would not be renewed if she was on medical leave for a hysterectomy operation. She sought advance approval to take medical leave under the Family Medical Leave Act. Dorman called the City, asked for a family medical leave form, and was transferred to Russi. Dorman explained that she wanted to apply for family medical leave because she had hysterectomy surgery scheduled. Russi was not sure whether she qualified for family medical leave and told her to contact Anderson. Dorman said Anderson was aware of the operation. Russi told her to get a note from her doctor. Dorman told him that she had a note from her doctor and she would fax it to him. Russi said he would look into whether she qualified. Dorman wrote a letter to Russi requesting forms and received them the following day.
While Dorman was out of the office on medical leave, different administrative assistants came to the Burbank office to provide administrative support, including Gloria Ceja. The administrative assistants asked questions that Ramirez and Davis could not answer. Two administrative assistants left L.A. Impact and their responsibilities were distributed among the remaining administrative assistants.
The City executed a new agreement with L.A. Impact. The agreement stated that the City would provide up to ten task force administrative assistants to L.A. Impact. The City agreed to handle all personnel administrative duties associated with the administrative assistants, including hiring, firing, benefits administration, and payroll.
L.A. Impact agreed to reimburse the City biweekly for all costs associated with the employment of the administrative assistants and pay an annual administrative fee of $2,500 per active employee. L.A. Impact agreed to assume direct supervisory control over the assigned individuals, with the understanding that L.A. Impact must adhere to the conditions in the employment contracts concerning the working environment and other employment related issues. L.A. Impact further agreed to follow all state and federal laws governing employment.
L.A. Impact acknowledged that the individuals assigned could only perform duties consistent with their respective job descriptions. L.A. Impact assumed responsibility for damages caused by the assigned individuals and agreed to defend and indemnify the City from all claims.
Dorman executed a new annual employment contract with the City that was substantially similar to her 2003 employment contract. The agreement provided a line for signature of Russi as personnel officer for the City, but there were no signature lines for L.A. Impact.
Dorman’s Return to Work
Dorman returned to work on August 1, 2005. A few days later, she spoke with Anderson and he assigned her responsibility for an additional group in Long Beach. Dorman found monthly reports and overtime reports were completed incorrectly in her absence, and some forms were not completed at all. Dorman believed she needed to ensure that reports and forms were completed in a timely and accurate manner. Telish’s assistant Jamie Robinson asked Dorman to fax a report to her as soon as possible. In order to complete an accurate report for Robinson, Dorman needed to correct and complete the monthly reports for her assigned groups.
Dorman was typing the entire 10 hours of every workday to correct and complete reports, handle the additional group assigned to her, and stay caught up on her daily responsibilities. On August 22, 2005, Dorman began to develop pain in her hands and forearms that she believed could be carpel tunnel.
On August 29, 2005, Dorman sent an E-mail message to Anderson about the problem she was experiencing with her hands, because she wanted to see a doctor. The next day, she filed a workers’ compensation claim listing the City as her employer. She was sent to a physical therapist and returned to her job the next day, continued typing, and continued to experience pain.
On October 19, 2005, Dorman visited workers’ compensation doctor Christopher Lee. Dr. Lee filled out a “work status” form listing the City as Dorman’s employer and Southern California Risk Management Associates for her insurance. Dr. Lee wrote that Dorman could return to work that day with restrictions not to lift over five pounds and to take a “10 min. [break]/hr. (from typing) No lifting, pushing, pulling.”
On November 7, 2005, Dorman was feeling sick when she arrived at work. She told the group leaders in her office and went home. Dorman went home sick again on November 8, 2005. On November 9, 2007, Anderson orally reprimanded Dorman for failing to contact him prior to going home sick.
Dorman’s condition with her hands failed to improve and she returned to Dr. Lee. Dr. Lee prepared a new work status form on November 16, 2005, with the following work restriction: “10 minute break every 30 minutes.” Dorman gave the work status form to L.A. Impact.
On November 17, 2005, Anderson and Kasten asked Dorman to meet with them in Commerce to discuss her medical condition. At the meeting, Anderson gave Dorman a written memorandum of expectations concerning absences from work. In the memorandum, Anderson stated, “I am memorializing our conversation today and reaffirming the expectation of you to obtain pre-approval for all time off, schedule changes, and absences. To do that, you are to notify me in person, by phone, or by [E-]mail with a response. In the event you are unable to contact me, you are directed to contact Captain Kasten in the same manner. In the event either one of us are not available, you are to contact Director Telish in the same manner. In the rare occasion that those attempts fail, you are to leave a message with the headquarters assistant. Failure to meet this expectation in the future could result in disciplinary action.”
Kasten asked Dorman several times whether she could perform her job with her medical condition. Dorman said she could complete her administrative assistant duties even with the work restrictions. When Anderson and Kasten asked how they could help her, she said she had an unequal workload, which she was aware of from talking to other administrative assistants, and asked them to restructure her workload. She said her responsibility for three active groups was an unreasonable expectation for one person. They told her that they would meet with Telish to discuss her medical condition and her complaint that she had a greater workload.
Dorman’s Reassignment to Commerce
On November 29, 2005, Anderson and Kasten asked Dorman to meet with them again in Commerce. At the meeting, they told her that she was temporarily reassigned to work in the Commerce office, effective immediately, and her only other option was to take unpaid leave. Dorman had corrected and completed all of the work that accumulated during her leave and was current in her responsibilities. Dorman told Anderson and Kasten that she could perform her job even with the doctor’s restrictions. In response to Anderson and Kasten’s perception that the “break” restriction required her to do nothing for ten minutes, Dorman explained the restriction meant she was to perform non-typing duties for ten minutes.
Anderson and Kasten said the reassignment to Commerce was intended to completely eliminate typing from her job until her condition healed. They said they did not know what she would be doing, but her hours would change to 8:00 a.m. to 6:00 p.m. Dorman asked if she could keep her work schedule of 7:00 a.m. to 5:00 p.m., in order to avoid the worst traffic. They said she had to conform to the new schedule.
Dorman was assigned to the DOJ BNE dispatch room in Commerce. She was supervised by DOJ employee Jesusita Asevedo. While assigned to the DOJ BNE dispatch room, Dorman worked at the reception window. She sat at the reception desk, greeted visitors, answered phones, shredded paper, read printouts, and sorted mail. The equipment in the dispatch room, including the telephone and computers, belonged to DOJ. She often found herself staring at the walls with nothing to do and she E-mailed Anderson and other assistants requesting more work.
The DOJ BNE reception dispatch office in Commerce opened for visitors at 8:00 a.m. and the dispatch office closed at 5:00 p.m. All of the administrative support staff went home at 5:00 p.m. After Robinson went home at 5:00 p.m., Dorman sat at Robinson’s desk from 5:00 p.m. to 6:00 p.m. Dorman was the only administrative support person working from 8:00 a.m. to 6:00 p.m. Her commute time increased from 15 minutes to two hours each day. Dorman wrote letters to Anderson, Kasten, Telish, and Russi to memorialize events and complain about the reassignment.
Dr. Lee revised the November 16, 2005 work status form to explain the work restriction: “After 30 minutes of continuous typing, patient can perform non-typing functions such as copying, filing (tasks other than typing).” Dorman provided the revised form to her supervisors. On December 19, 2005, Dorman sent a letter to Russi seeking his assistance.
During Dorman’s reassignment to the Commerce office, she completed a task report for Anderson comparing the work among support staff. Dorman supported three groups with a total of 23 detectives, while the other three administrative assistants were assigned groups consisting of 11, 17, and 18 total detectives. As of December 15, 2005, the detectives in Dorman’s groups had generated 254 case packages, and as a result, Dorman’s workload was 41 percent of the case packages of all the administrative assistants. The other three assistants had completed 16 percent, 17 percent, and 25 percent of the case packages.
On January 27, 2006, Dorman saw her personal physician Dr. Fei-sen Yung. He told her that nerve damage had occurred as a result of the early stages of carpel tunnel that she had experienced and there is no medical knowledge as to whether it will improve. He reviewed her job duties and asked if she felt she could complete them without causing further injury. She had never thought her regular responsibilities were an issue. Dr. Yung removed all work restrictions at her request.
On January 30, 2006, Asevedo wrote a letter of commendation to Anderson concerning Dorman’s performance that stated in pertinent part: “I would like to commend Christine Dorman on her versatility in assisting in relieving for the LARO Dispatch Center. [¶] Ms. Dorman has been instrumental in assisting the full-time dispatcher and relief dispatchers in the operations of Excel Programs and the JDIC/CLETS Program, and has recommended other resources of information to meet the operational needs of the office. She has demonstrated a positive attitude and a good rapport with BNE/CBI staff and the public. [¶] It has been a pleasure working with Ms. Dorman as she has shown initiative, motivation and commitment to her assigned duties. In addition, she is always on time and communicates well in consistently informing me as to when she will be absent or tardy for pre-scheduling purposes. [¶] Thank you[,] Susie Asevedo, OSSI[,] Department of Justice[,] California Bureau of Investigation[.]” Dorman sent a copy of the commendation to Russi for review and asked him to place the letter in her official personnel file.
Dorman’s Reassignment to Burbank and Non-Renewal of Contract
On February 1, 2006, Anderson informed Dorman that he had received Dr. Yung’s note. Since she agreed that she could work without accommodation, she would be reassigned to her previous job function. However, he stated that the two administrative assistants supporting Dorman’s groups would continue to have responsibility for those groups.
On February 2, 2006, Dorman filed a complaint with the Department of Fair Employment and Housing (DFEH) for retaliation and discrimination. On February 8, 2006, Dorman returned to work at the Burbank office. Dorman was assigned special projects instead of her former responsibilities.
On May 10, 2006, as Dorman prepared to leave for a scheduled vacation, Anderson, Kasten and Robinson came to the office. They told her that her employment contract was not being renewed. They said to pack her things, not return, and she would be paid through the end of her contract.
Ramirez and Davis were out in the field when Dorman was terminated. Dorman called Ramirez from the parking lot to tell him what had happened and he could hear her crying. Kasten and Anderson called Ramirez in the field ten minutes later to inform him that Dorman’s employment had been terminated.
On May 30, 2006, Russi sent Dorman a letter confirming that her employment contract had not been renewed. On July 12, 2006, Russi wrote a letter to the Employment Development Department (EDD) requesting that the EDD deny a claim for unemployment benefits submitted by Dorman. He stated, “Ms. Dorman is an independent contractor assigned to a third party under an agreement that is renewed each year. Although her assignment had been continued through various employment agencies in the past, she was only guaranteed employment for a 12-month period through June 30, 2006. As there was no expectation of employment beyond that date, we believe your office should find her ineligible for unemployment benefits.” The EDD granted Dorman’s application for benefits.
Dorman Initiates Legal Action
On August 29, 2006, Dorman filed a new complaint with the DFEH. She stated that on the basis of her sex, her union organizing attempts, and her physical disability, she was harassed, denied equal pay, denied family or medical leave, denied workers’ compensation rights, denied accommodation, denied transfer and fired. DFEH issued her a right-to-sue letter on September 14, 2006.
Dorman filed a complaint. On February 8, 2007, Dorman filed the operative second amended complaint against L.A. Impact, the City, the DOJ, the PVPD, Telish, Kasten, Anderson, and Russi. She alleged causes of action under the Fair Employment and Housing Act (FEHA) (§ 12940 et seq.) for discrimination, harassment, retaliation, failure to engage in the interactive process, failure to reasonably accommodate a disability, and failure to prevent discrimination and harassment, as well as retaliation under Government Code section 12945.2 [pertaining to family and medical leave], retaliation in violation of public policy, wrongful termination in violation of public policy, negligent supervision, intentional infliction of emotional distress, and interference with prospective economic advantage.
The City’s Motion for Summary Judgment and Supporting Evidence
On June 14, 2007, the City, LA Impact, and Anderson filed a motion for summary judgment, or alternatively for summary adjudication of issues, on the ground that the City did not employ Dorman, Telish, Kasten or Anderson. Therefore, the City argued, it was not liable for Dorman’s employment-related claims or responsible for the individuals’ actions.
In support of the motion, the City submitted Russi’s declaration. Russi declared that he participated in determining the City’s role in the employment of L.A. Impact’s civilian employees in 2003. L.A. Impact wanted to provide increased benefits to civilian employees. The City agreed to act as a fiduciary for L.A. Impact, administer L.A. Impact’s funds, and prepare and issue paychecks to L.A. Impact employees. The City facilitated processing of benefits and issuing paychecks printed from the City, but the City did not compensate L.A. Impact employees.
Russi declared that none of the civilian personnel of L.A. Impact was actually employed by the City, none had access to the City’s grievance process, and the pay rates of L.A. Impact’s civilian employees were determined by the Director of L.A. Impact without any input from the City. The City had no control of Dorman’s daily activities. The City did not actually pay her salary or Social Security taxes, owned none of the equipment that she needed to perform her job, did not own the building where she performed her job, had no obligation to train her, no authority to hire, transfer, promote, discipline or discharge her or to determine her work schedule, assignments or compensation.
In 2005, the form Dorman requested for extended medical leave did not exist for L.A. Impact. She contacted Russi, but he did not know whether she qualified for the requested leave. The City requested that she provide a doctor’s note. The doctor’s note that she provided was insufficient, because it failed to explain the reason for her medical leave. After proper information was received, L.A. Impact made the decision to allow her medical leave.
The City received workers compensation claims as a service to L.A. Impact, checked that the benefit information was properly filled out and forwarded the claims for processing. Russi learned that Dorman submitted a claim for repetitive motion injuries and he was aware that she had work restrictions due to her injury. Russi asked L.A. Impact employees whether they were able to accommodate Dorman and learned that they were considering transferring her to the Commerce office. Russi had no input into the decision and was notified later that Dorman had been moved to Commerce. He also had no input into the decision not to renew Dorman’s contract and has no knowledge of the reason other than what was told to him by L.A. Impact.
The City also submitted Telish’s declaration stating that his participation in decisions pertaining to Dorman’s employment was solely based on the authority conveyed to him as the Executive Director of the task force with regard to the civilian administrative staff. Telish declared that Dorman’s salary and benefits were established according to her employment contract with the City on behalf of L.A. Impact. Telish declared that the decision not to renew Dorman’s employment contract was made in May 2006. In his capacity as Executive Director, he considered the totality of the circumstances surrounding Dorman’s employment at the Burbank facility and made a recommendation to the Chairperson of L.A. Impact’s Executive Board not to renew her contract after June 30, 2006. Telish did not have authority to make the decision not to renew her contract without the approval of the Executive Board.
The City also submitted Telish’s deposition testimony. In his deposition, Telish stated that Dorman is no longer working for L.A. Impact because she refused to participate in a restructuring and a centralization of the task force that was ongoing from October 2004 to the present. The task force is decentralized, but L.A. Impact wanted all of the administrative assistants at a central location at the main office. Dorman did not agree to the centralization of the administrative staff. Dorman is also no longer working for L.A. Impact because they did not need the position at the off-site location. Telish testified that there are no administrative assistants currently working in the Glendale office, which was formerly the Burbank office. An administrative assistant working in the Commerce office is assigned to support the Glendale group. L.A. Impact also experienced substantial budget cuts from granting sources in 2005 and 2006 and these financial concerns contributed to the decision not to renew Dorman’s contract. L.A. Impact identified a need for technical support, because they were restructuring their technology database and none of the employees had the expertise to maintain the new technology platform, so they anticipated a need for funds to pay for technological support. L.A. Impact is still looking for an employee for the technical support position.
DOJ’s Motion for Summary Judgment and Supporting Evidence
The DOJ filed a motion for summary judgment, or in the alternative for summary adjudication of issues, on the grounds that the DOJ had no employment relationship with Dorman, Telish exercised authority over Dorman solely in his capacity as L.A. Impact management and his authority over Dorman was limited, Dorman could not show a prima facie case of retaliation, her transfer to the Commerce office and the non-renewal of her contract were based on legitimate business reasons, the DOJ is immune from tort-based liability and Telish’s actions were not outrageous.
The DOJ submitted Telish’s declaration in support of the motion. Telish declared that personnel management decisions affecting the terms and conditions of Dorman’s employment were not submitted to anyone at the DOJ for approval, nor did the DOJ exercise control over any of the decisions regarding Dorman’s employment at L.A. Impact. Telish’s participation in decisions pertaining to Dorman’s employment was solely based on the authority conveyed to him as the Executive Director of the task force with regard to the civilian administrative staff. His employment relationship with DOJ does not give him authority to manage personnel operations of the task force concerning the civilian administrative staff.
Opposition to Motions for Summary Judgment and Supporting Evidence
Dorman filed oppositions to the City’s and the DOJ’s motions for summary judgment on the ground that triable issues of fact existed as to whether either entity was liable as an employer. Dorman submitted her declaration in support of the oppositions. In addition to the facts summarized above, Dorman stated that she understood from Anderson and Kasten, as well as from her employment contract, that Telish had sole decision-making authority regarding her employment, including authority to transfer, discipline, discharge and establish her work schedules and assignments. She never refused to participate in any restructuring and centralization of the task force’s administrative staff, and no one told her the reason her contract was not renewed was because she had refused to participate in restructuring or centralization.
Dorman also submitted Ramirez’s declaration. Ramirez declared that from the time he started at L.A. Impact, he found Dorman was a good employee, had everything ready, and ran the entire office. He declared, “We had a great working relationship. Everything was perfect. I told L.A. Impact Executive Director Telish that Ms. Dorman was the best secretary we have had anywhere—even the LAPD. Ms. Dorman was self-motivated. You did not have to tell her to do anything. She took care of everything and we could focus on field activities, where we belonged.” At the time of Dorman’s termination, there was no clear line of authority. Ramirez did not even understand whether he was still her supervisor.
Dorman also submitted Kasten’s performance evaluation prepared by Telish for April 2005 to March 2006. In the narrative portion, Telish stated, “Captain Kasten has been involved in the hiring and termination of civilian assistants this past year. . . . Captain Kasten commendably handled a potentially litigious situation in which a disgruntled civilian employee was suspected of manipulating the rights afforded through worker’s compensation law and the Americans with Disabilities Act. He diligently kept documentation and held the employee accountable through close scrutiny. The end result was that Captain Kasten was able to keep the employee productive while protecting the task force from potential liability in future litigation.” Telish admitted in discovery responses that Dorman is the employee referred to in the evaluation.
Replies and Trial Court Ruling
The City and the DOJ submitted replies. A hearing was held on September 10, 2007. On October 22, 2007, the trial court denied the motion for summary judgment filed by the City, Anderson and L.A. Impact. However, the court ruled that the undisputed facts showed the City was not Dorman’s employer and granted the motion for summary adjudication as to the liability of the City. The trial court granted the DOJ’s motion for summary judgment. The court denied a motion for summary judgment filed by Telish. The trial court entered judgment in favor of the City on November 14, 2007, and judgment in favor of the DOJ on November 16, 2007.
DISCUSSION
Standard of Review for Summary Judgment and Summary Adjudication Motions
“We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 388-389.)
Employer-Employee Relationship
Dorman contends that both the City and the DOJ are liable for her employment related claims. We conclude that Dorman was not an employee of the DOJ, but triable issues of fact exist as to her employment relationship with the City.
A. Totality of the Circumstances Test
“The FEHA establishes a comprehensive scheme for addressing employment discrimination.” (Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1623 (Bradley).) Discrimination on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, and sex is against public policy (Gov. Code, § 12920) and an unlawful employment practice (Gov. Code, § 12940). (Vernon v. State of California (2004) 116 Cal.App.4th 114, 122-123 (Vernon).)
However, only an employer is prohibited from engaging in discrimination. (Gov. Code, § 12940, subd. (a).) “FEHA requires ‘some connection with an employment relationship,’ although the connection ‘need not necessarily be direct.’ (Lutcher v. Musicians Union Local 47 (9th Cir.1980) 633 F.2d 880, 883.)” (Vernon, supra, 116 Cal.App.4th at p. 123.)
There is no magic formula to determine whether an entity is a joint employer. (Bradley, supra, 158 Cal.App.4th at p. 1626.) “The prevailing view is to consider the totality of the circumstances, reflecting upon the nature of the work relationship between the parties, and placing emphasis on the control exercised by the employer over the employee[’s] performance of employment duties. (Vernon v. State of California, supra, 116 Cal.App.4th at pp. 124-125.)” (Bradley, supra, 158 Cal.App.4th at p. 1626.)
“Factors to be taken into account in assessing the relationship of the parties include payment of salary or other employment benefits and Social Security taxes, the ownership of the equipment necessary to performance of the job, the location where the work is performed, the obligation of the defendant to train the employee, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments, the defendant’s discretion to determine the amount of compensation earned by the employee, the skill required of the work performed and the extent to which it is done under the direction of a supervisor, whether the work is part of the defendant’s regular business operations, the skill required in the particular occupation, the duration of the relationship of the parties, and the duration of the plaintiff's employment. [Citations.] ‘“Generally, . . . the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.” [Citation.]’ [Citation.]” (Vernon, supra, 116 Cal.App.4th at p. 125.)
“‘Of these factors, the extent of the defendant’s right to control the means and manner of the workers’ performance is the most important.’ [Citations.] In all cases, an ‘employer must be an individual or entity who extends a certain degree of control over the plaintiff.’ [Citation.] The focus of our evaluation of the right to control the plaintiff’s work performance is upon ‘not only the result but also the means by which the result was accomplished.’ [Citation.] And particularly, the inquiry considers the level of control an organization asserts over an individual’s access to employment opportunities. [Citations.] Further, ‘the control an organization asserts must be “significant,” [citation], and there must be a “sufficient indicia of an interrelationship . . . to justify the belief on the part of an aggrieved employee that the [alleged co-employer] is jointly responsible for the acts of the immediate employer.” [Citations.]’ [Citations.] In determining liability under the FEHA, we look ‘“to the degree an entity or person significantly affects access to employment” . . . .’ [Citation.]” (Vernon, supra, 116 Cal.App.4th at p. 126.)
“In the context of an individual who is employed by a temporary agency and assigned to work on the premises of the agency’s client, . . . the purpose of FEHA to safeguard an employee’s right to hold employment without experiencing discrimination is best served by applying the traditional labor law doctrine of ‘dual employers,’ holding both the agency and the client are employers and considering harassment by an employee of the client coworker harassment rather than harassment by a third party. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174 [‘The possibility of dual employment is well recognized in the case law. “Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employers—his original or ‘general’ employer and a second, the ‘special’ employer.” [Citation.]’]; Riley v. Southwest Marine, Inc. (1988) 203 Cal.App.3d 1242, 1247-1248, (Riley) [‘when an employer lends an employee to another employer and relinquishes to the borrowing employer all right of control over the employee’s activities’ a two-employer situation is created].)” (Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1183.)
“‘If general and special employment exist, “the injured [worker] can look to both employers for [workers’] compensation benefits. [Citations.]”’ (Kowalski v. Shell Oil Co., supra, 23 Cal.3d at p. 175.) We see no reason not to permit an employee injured by violations of FEHA laws to likewise look to both employers for redress. Applying this doctrine promotes the purpose of FEHA, which is to prevent and eliminate sexual harassment and discrimination in the workplace. (See Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 493 [‘The FEHA itself requires that we interpret its terms liberally to accomplish the stated legislative purpose’]; Fisher v. San Pedro Peninsula Hospital (1998) 214 Cal.App.3d 590, 624 [provisions of FEHA are to be construed liberally to achieve its purpose of preventing and eliminating sexual harassment in the workplace].) To hold otherwise would allow . . . temporary employment agencies to send their employees into hostile and discriminatory workplaces and to ignore complaints of harassment without fear of liability. By contrast, the purposes of FEHA are promoted if both the staffing agency and its client are treated as the employer, and employees of the client entity are treated as coworkers of employees of the staffing agency, within the meaning of FEHA. [Citation.]” (Mathieu v. Norrell Corp., supra, 115 Cal.App.4th at pp. 1184-1185.)
B. The City’s Relationship to Dorman
A triable issue of fact exists as to whether the City was Dorman’s employer. LA Impact borrowed personnel from other agencies. A trier of fact could reasonably infer from the agreement between the City and L.A. Impact that the City agreed to hire and employ administrative assistants who were then lent to L.A. Impact. The agreement between the City and L.A. Impact stated that the City would handle all personnel administrative duties, including hiring, firing, payroll, and benefits administration. Dorman entered into an employment contract directly with the City that did not require the signature of anyone from L.A. Impact. The City paid Dorman’s salary and benefits, issued W-2 tax forms and was listed as her employer on the W-2 forms. The City opposed Dorman’s claim for unemployment benefits by characterizing her as an independent contractor assigned to a third party, although it is clear that Dorman was not an independent contractor. A trier of fact could reasonably conclude that the City retained the ability to control aspects of Dorman’s employment, similar to the control exercised by a temporary agency or other organizations that lent employees to L.A. Impact, and therefore, the City was a joint employer who could not ignore Dorman’s complaints about workplace discrimination.
C. The DOJ’S Relationship to Dorman
The undisputed facts demonstrate that the DOJ was not Dorman’s employer, nor was the DOJ liable under the FEHA for Telish’s actions based on principles of respondeat superior, because Telish was not acting as an agent of the DOJ in supervising Dorman. Although Telish appears to have been a dual employee of both the DOJ and LA Impact, it is not reasonable to characterize Dorman as a DOJ employee based solely on the duality of Telish’s employment. No other evidence was presented to support that the DOJ employed Dorman or made any decisions that interfered with her employment. The undisputed evidence was that Telish’s actions were taken within the scope of his employment for L.A. Impact and at the sole direction of L.A. Impact. Telish declared that he supervised Dorman solely in his capacity as Executive Director of L.A. Impact. He sought approval for certain personnel actions from L.A. Impact’s Executive Board. He also declared that his employment relationship with the DOJ did not give him authority to manage civilian task force personnel. There was no evidence that Telish sought approval from the DOJ, acted in his capacity as a DOJ employee, or acted as an agent of the DOJ in supervising Dorman. The evidence showed that any control Telish exercised over Dorman’s employment was with the authority, at the direction, and for the benefit of LA Impact, not the DOJ.
Telish’s decision to assign Dorman to a DOJ dispatch office supervised by a DOJ employee without objection by the DOJ does not permit an inference of control by the DOJ at the level necessary to create an employment relationship. The DOJ did not provide compensation to Dorman or L.A. Impact for any services that Dorman rendered in the dispatch office. Telish declared that his actions were taken in his capacity as Executive Director of L.A. Impact and there was no evidence that Dorman received direction from anyone other than L.A. Impact personnel. Indeed, while working in Commerce, Dorman communicated with persons assigned solely to L.A. Impact and the City in an attempt to be reassigned to Burbank. Her actions demonstrated her understanding that L.A. Impact and the City continued to have sole authority and control over her employment.
An agreement to indemnify L.A. Impact or other member agencies for damages caused by DOJ employees assigned to L.A. Impact does not create an employment relationship between the DOJ and L.A. Impact personnel. Dorman notes that L.A. Impact’s main office was located in a DOJ facility in Commerce, she used equipment supplied and maintained by the DOJ, and Telish’s supervisor at the DOJ was also a member of L.A. Impact’s Executive Board. However, it is clear from the evidence that numerous member agencies provide substantial support for L.A. Impact, including the LAPD, the PVPD, and the City, and therefore, the DOJ and L.A. Impact cannot be considered a single integrated enterprise. Under these circumstances, the trial court correctly concluded from the undisputed facts that no employment relationship existed between Dorman and the DOJ, and summary judgment was properly granted.
Intentional Infliction of Emotional Distress
Dorman contends the City and the DOJ are liable for intentional infliction of emotional distress caused by their employees, regardless of whether she had an employment relationship with either entity. We disagree.
The adverse employment actions alleged in Dorman’s complaint are within the realm of personnel management decisions that are unlawful only if motivated by prohibited discriminatory considerations. “An essential element of [a claim for intentional infliction of emotional distress] is a pleading of outrageous conduct beyond the bounds of human decency. [Citations.] Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 79-80.)
Summary judgment in favor of the DOJ was proper and the City is entitled to summary adjudication of the intentional infliction of emotional distress cause of action.
DISPOSITION
The judgment in favor of defendant and respondent State of California Department of Justice is affirmed. The State of California Department of Justice is awarded its costs on appeal from plaintiff and appellant Christine Dorman.
The judgment and the order granting summary adjudication in favor of defendant and respondent City of La Verne are reversed. The trial court is directed to enter a new and different order granting summary adjudication of the cause of action for intentional infliction of emotional distress, and otherwise, denying the City’s motion for summary judgment. Christine Dorman is awarded her costs incurred in connection with the appeal from the judgment in favor of the City from the City of La Verne.
We concur: TURNER, P. J., MOSK, J.