Miller v. Dep't of Corrections, 115 P.3d 77, 36 Cal.4th 446, 30 Cal.Rptr.3d 797 (Cal. 07/18/2005)

[1] IN THE SUPREME COURT OF CALIFORNIA


[2] No. S114097


[3] 115 P.3d 77, 36 Cal.4th 446, 30 Cal.Rptr.3d 797, 86 Empl. Prac. Dec. P 41,996, 2005 Daily Journal D.A.R. 8561, 96 Fair Empl.Prac.Cas. (BNA) 258, 05 Cal. Daily Op. Serv. 6268, 2005


[4] July 18, 2005


[5] EDNA MILLER ET AL., PLAINTIFFS AND APPELLANTS,
v.
DEPARTMENT OF CORRECTIONS ET AL., DEFENDANTS AND RESPONDENTS.


[6] Sacramento County Super. Ct. No. 99AS03354, Ct.App. 3 C 040262 Judge: Joe S. Gray.


[7] Attorneys for Appellant:


[8] Lawless & Lawless, Barbara A. Lawless, Aelish M. Baig and Sonya L. Smallets for Plaintiffs and Appellants.


[9] Law Offices of Philip Edward Kay and Lawrence A. Organ for The Civil Rights Forum as Amicus Curiae on behalf of Plaintiffs and Appellants.


[10] Law Offices of Jeffrey K. Winikow and Jeffrey K. Winikow for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiffs and Appellants.


[11] The Lucas Law Firm and Kathleen M. Lucas for Equal Rights Advocates' as Amicus Curiae on behalf of Plaintiffs and Appellants.


[12] The Sturdevant Law Firm, James C. Sturdevant; Law Offices of Daniel U. Smith, Daniel U. Smith; Ian Herzog; Michael Adler; Sharon J. Arkin; Stuart B. Esner; Brian S. Kabateck; David A. Rosen; Christine D. Spagnoli; Lea-Ann Tratten, Steven B. Stevens; and Scott H. Z. Sumner for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiffs and Appellants.


[13] Attorneys for Respondent:


[14] Bill Lockyer, Attorney General, Jacob Appelsmith, Assistant Attorney General, Vincent J. Scally, Jr., Timothy G. Yeung, Diana L. Cuomo and David J. Neill, Deputy Attorneys General, for Defendants and Respondents.


[15] Morgan, Lewis & Bockius, Rebecca D. Eisen, Thomas M. Peterson and Shannon B. Nakabayashi for The Employers Group as Amicus Curiae on behalf of Defendants and Respondents.


[16] Counsel who argued in Supreme Court (not intended for publication with opinion):


[17] Daniel U. Smith Law Offices of Daniel U. Smith Post Office Box 278 Kentfield, CA 94914 (415) 461-5630


[18] David J. Neill Deputy Attorney General 1300 I Street Sacramento, CA 94244-2550 (916) 327-4853


[19] The opinion of the court was delivered by: George, C.J.


[20] Plaintiffs, two former employees at the Valley State Prison for Women, claim that the warden of the prison at which they were employed accorded unwarranted favorable treatment to numerous female employees with whom the warden was having sexual affairs, and that such conduct constituted sexual harassment in violation of the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) The trial court granted summary judgment in favor of defendants, concluding that the conduct in question did not support a claim of sexual harassment, and the Court of Appeal affirmed. We must determine whether, in light of the evidence presented in support of and in opposition to the summary judgment motion, the lower courts properly found that plaintiffs failed to present a prima facie case of sexual harassment under the FEHA.


[21] For the reasons explained below, we conclude that, although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as "sexual playthings" or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management. We further conclude that, contrary to the Court of Appeal's determination, the evidence presented in the summary judgment proceedings was sufficient to establish a prima facie case of sexual harassment under the appropriate legal standard, and thus that the Court of Appeal erred in affirming the trial court's grant of summary judgment in favor of defendants. Accordingly, we shall reverse the judgment rendered by the Court of Appeal.


[22] I.


[23] On June 15, 1999, plaintiffs Edna Miller and Frances Mackey*fn1 brought this action against the California Department of Corrections (Department), the Valley State Prison for Women, Cal Terhune as Director of the Department, and various unnamed persons (all of whom shall be referred to collectively as the Department or defendants). In their first cause of action, Miller and Mackey alleged that during their employment with the Department, they were subjected to sexual discrimination and harassment in violation of the FEHA. They also alleged that defendants retaliated against them for complaining about the discrimination and harassment.*fn2


[24] On August 17, 2001, the trial court granted defendants' motion for summary adjudication of issues with respect to plaintiff Miller, except as to her claim for disability discrimination. The court also granted summary judgment in favor of defendants with respect to plaintiff Mackey. Miller voluntarily dismissed her complaint as to her remaining cause of action for disability discrimination, and judgment was entered in favor of defendants. This appeal followed.


[25] The declarations, deposition transcripts, and other evidence submitted in support of and in opposition to defendants' motion for summary judgment and for summary adjudication of issues disclose the following facts.


[26] A.


[27] Plaintiff Edna Miller began working for the Department as a correctional officer in 1983. In 1994, while she was employed at the Central California Women's Facility (CCWF), she heard from other employees of the Department that the chief deputy warden of the facility, Lewis Kuykendall, was having sexual affairs with his secretary, Kathy Bibb, and with another subordinate, associate warden Debbie Patrick. In her declaration, Miller stated that she often heard Kuykendall at work arguing with Patrick concerning his relationship with Bibb. Another Department employee at CCWF, Cagie Brown, told Miller that she, too, was having an affair with Kuykendall. Brown admitted in her deposition that her affair with Kuykendall began at CCWF in 1994.


[28] In 1994, plaintiff Miller complained to Kuykendall's superior officer at the CCWF, Warden Tina Farmon, about what she considered the "inappropriate situation" created by Kuykendall's relationships with Bibb, Brown, and Patrick. Farmon informed Miller that she had addressed the issue.


[29] In February 1995, the Department transferred plaintiff Miller to the Valley State Prison for Women (VSPW), where Kuykendall now served as warden. In May 1995, Miller served on an interview committee that evaluated Bibb's application for a promotion to the position of correctional counselor, a position that would entail a transfer to VSPW. (Bibb by now was serving as an instructor at CCWF.) When the interviewing panel did not select Bibb, Miller and other members of the panel were informed by an associate warden that Kuykendall wanted them to "make it happen."*fn3 Miller declared: "This was . . . the first of many incidents which caused me to lose faith in the system . . . and to feel somewhat powerless because of Kuykendall and his sexual relations with subordinates." There was evidence Bibb had bragged to plaintiff Mackey of her power over the warden, and a departmental internal affairs investigation later concluded Kuykendall's personal relationship with Bibb rendered his involvement in her promotion unethical.


[30] Bibb's promotion was awarded despite the opposition of Patrick, who by now also had been transferred to VSPW. Miller believed that, as a result of Patrick's sexual affair with Kuykendall, Patrick had been awarded the transfer to VSPW and enjoyed unusual privileges, such as reporting directly to Kuykendall rather than to her immediate superior.


[31] Miller confronted Brown, who now also was employed at VSPW, concerning Brown's affair with Kuykendall. Brown, admitting the affair, bragged about her power over Kuykendall and stated her intention to use this power to extract benefits from him. Another Department employee, Frances Gantong, confirmed that, prior to Brown's transfer to VSPW, Brown told Gantong that Kuykendall promised to secure Brown's transfer to VSPW and to aid in her promotion to the position of facility captain. Miller also claimed Brown received special assignments and work privileges from Kuykendall, and Kuykendall's secretary, Sandra Tripp, agreed with this assessment. (Miller believed Tripp's employment had been terminated after she made Kuykendall and Brown's affair public.)


[32] In July 1995, Brown and Miller competed for a promotion to a temporary post as facility captain at VSPW. Brown announced to Miller that Kuykendall would be forced to give her, Brown, the promotion or she would "take him down" with her knowledge of "every scar on his body." Kuykendall served on the interview panel, conduct that the departmental internal affairs investigation report later branded unethical because of his sexual relationship with Brown. Brown received the promotion, despite Miller's higher rank, superior education, and greater experience. According to Miller's deposition, the officers involved in the selection process expressed surprise that Brown had been promoted, because they had recommended Miller for the higher position, and these officers and other employees commented to Miller that Brown's selection was unfair. According to plaintiff's estranged husband, William Miller, also a Department employee, many employees were upset by Brown's promotion. They attributed the promotion to the sexual affair between Kuykendall and Brown, believing Brown to be unqualified. Brown and Miller later competed for promotion to a permanent facility captain position, and Brown again secured the promotion.


[33] Within a year and a half, Brown was promoted to the position of associate warden, a pace of promotion that was unusually rapid. Kuykendall again served on the interview panel. Miller's failure to be promoted to the position of facility captain made her ineligible to compete for higher-ranking positions, and Brown became her direct supervisor. According to Cooper, the internal affairs investigator, William Miller informed Cooper that other employees were outraged by the pace of Brown's promotions and "employees were saying things like, what do I have to do, `F' my way to the top?"


[34] Miller stated in her deposition that she was afraid of complaining, because of the adverse employment actions taken against two other female employees who had complained concerning the warden's affairs, Frances Gantong and Sandra Tripp.


[35] Department employees were aware of all three of Kuykendall's sexual affairs at CCWF and VSPW, according to the Department's internal affairs investigation and the declarations and deposition testimony of employees. The internal affairs report noted that, as to Bibb and Brown, "[b]oth relationships were viewed by staff as unethical from a business practice standpoint and one [sic] that created a hostile working environment." During his investigation, internal affairs investigator Cooper encountered several employees who believed that persons who had sexual affairs with Kuykendall received special employment benefits. In her deposition, Cagie Brown acknowledged that there were widespread rumors that sexual affairs between subordinates and their superior officers were "common practice in the Department of Corrections" and that there were rumors that employees, including Bibb, secured promotion in this way.


[36] Kuykendall conceded he had danced with Bibb at work-related social gatherings and there was evidence he telephoned her at home hundreds of times from his workplace. Employees, including Mackey and Miller, witnessed Bibb and Kuykendall fondling each other on at least three occasions at work-related social gatherings occurring between 1991 and 1998 where employees of the institution were present. One Department employee, Phyllis Mellott, also complained that at such a gathering Kuykendall had put his arms around her and another employee and made unwelcome groping gestures. Kuykendall was present with Bibb in 1998 when she was arrested for driving under the influence of alcohol, a circumstance of which Miller and other employees were aware. Kuykendall failed to initiate an internal affairs investigation concerning the incident or report his own involvement. He also conceded he had heard complaints that Patrick received favorable treatment because of her relationship with him.


[37] Plaintiffs presented evidence that the three women who were having sexual affairs with Kuykendall Patrick, Bibb, and Brown squabbled over him, sometimes in emotional scenes witnessed by other employees, including Miller.


[38] Miller experienced additional difficulties when chief deputy warden Vicky Yamamoto arrived at VSPW and interfered with Miller's direct access to the warden. Miller initially believed the conflict between the two women was not gender based, but came to believe that Yamamoto's subsequent interference with Miller's authority occurred because Miller had refused dinner invitations that Yamamoto did not extend to male employees. Miller refused these invitations because she had heard that Yamamoto was a lesbian, and Miller assumed Yamamoto's interest in her was sexual. Rumors circulated among prison employees that Yamamoto and Brown were engaged in a relationship that was "more than platonic."


[39] According to Miller, in 1997, during a peer review audit at another prison, Miller complained to Gerald Harris, a chief deputy warden at the facility who also served as a sexual harassment advisor for the Department, concerning Kuykendall's sexual relationship with Brown and Brown's close relationship with Yamamoto, adding that Yamamoto was disrupting the work of the institution and that Kuykendall had not disciplined Yamamoto. In her declaration, plaintiff Miller stated she informed Harris that "I felt I was working in a hostile environment based on the sexual relationship between Brown and Kuykendall and the close relationship between Brown and Yamamoto." Following her meeting with Harris, Miller complained to Kuykendall concerning Brown and Yamamoto's interference with her duties.


[40] According to Miller, after her complaint to Kuykendall, Brown and Yamamoto made Miller's work life miserable and diminished her effectiveness by frequently countermanding her orders, undermining her authority, reducing her supervisorial responsibilities, imposing additional onerous duties on her, making unjustified criticisms of her work, and threatening her with reprisals when she complained to Kuykendall about their interference.


[41] In September 1997, Miller telephoned Brown to confront Brown concerning her relationship with Kuykendall and to complain about the mistreatment she had suffered at the hands of Brown and Yamamoto. During this conversation, which Miller permitted Mackey and others to overhear, Brown acknowledged that Yamamoto was heaping unjustified abuse on Miller and that Kuykendall was aware of Yamamoto's mistreatment of Miller but would do nothing to rectify the situation. Miller subsequently informed Cooper, the internal affairs investigator, that during this telephone conversation Miller had threatened to make a public announcement concerning the affair between Brown and Kuykendall.


[42] The next day, Brown accused Miller of tape-recording their telephone conversation. Brown entered Miller's office, ordered plaintiff Mackey (Miller's assistant) to leave, and then physically assaulted Miller, holding her captive for two hours. When Mackey went to Yamamoto to secure assistance for Miller, Yamamoto did not intervene. When Miller reported the affray to Kuykendall and threatened to report his relationship with Brown to higher authorities within the Department, Kuykendall responded that no one would believe her. Kuykendall told Miller to take time off from work and that upon her return she would not be required to report to Brown or Yamamoto. He subsequently awarded her a promotion. Kuykendall failed to investigate the assault after Miller complained to him. The internal affairs investigation concluded that Brown had committed assault and false imprisonment and that Kuykendall's failure to intervene or to discipline Brown constituted a violation of Department policy.


[43] Brown and Yamamoto continued to interfere with Miller's work. Miller made further complaints to Kuykendall in 1998, eventually stating she planned to file a harassment complaint. Kuykendall explained there was nothing he could do about the harassment, because of his relationship with Brown and Brown's relationship with Yamamoto. He complained of Brown's untrustworthiness, stating he was "finished" with Brown and adding, "I should have chose[n] you." Miller understood these words to mean "he should have chose[n] me to have a relationship with," explaining, "I knew what he meant. He didn't say what, but he meant as a relationship. That's what I took it as." When Miller announced she intended to file a harassment complaint against Kuykendall for his failure to control Brown and Yamamoto, Kuykendall advised her not to do so, stating she would only cause an ugly scandal. Miller continued that thereafter, "[p]retty much the institution was exploding . . . everybody was basically taking complaints to Mr. Kuykendall, and that's when [the Office of Internal Affairs] came into the institution."


[44] Miller stated that she joined three other employees early in 1998 in complaining confidentially to Lewis Jones, Kuykendall's superior officer and the Department's regional administrator, concerning Yamamoto (and Kuykendall's failure to curtail Yamamoto's abuse of Miller), stating that the "institution was out of control." She recalled that Jones stated "he was dealing with Mr. Kuykendall on the disruption of the institution," but Miller did not observe any follow-up. She did not complain to Jones specifically about sexual harassment.


[45] Later in 1998, regional administrator Jones recommended a departmental Office of Internal Affairs investigation, which, as noted above, began investigating misconduct on the part of Kuykendall, Yamamoto, and Brown. Miller was required to cooperate, and she informed investigating officer Cooper of Kuykendall's sexual affairs with Brown, Bibb, and Patrick, and of the substance of Brown's statements to her. Despite Cooper's assurance of confidentiality, Miller soon found that Brown was aware of Miller's statements, and Brown began a campaign of ostracism against Miller. According to Miller's declaration and deposition testimony, Yamamoto also harassed Miller with unannounced inspections and interference with her orders; Kuykendall withdrew accommodations that previously had been accorded Miller because of a physical disability,*fn4 and even the inmates appeared to believe that Miller had attempted to have Kuykendall's employment terminated. On one occasion, Brown angrily confronted Miller about her statements to the internal affairs investigator, would not allow Miller to terminate the conversation, and followed Miller home to continue the harangue. Upon Miller's complaint, a court order issued requiring Brown to stay away from Miller.


[46] Miller suffered increasing stress and resigned from the Department on August 5, 1998. She filed a government tort claim with the Department in November 1998, followed by a complaint with the Department of Fair Employment and Housing in March 1999. She filed her complaint in superior court on June 15, 1999.


[47] As a result of the internal affairs investigation, Kuykendall retired, Yamamoto was transferred and demoted, and Brown resigned with disciplinary proceedings pending.


[48] B.


[49] Plaintiff Frances Mackey joined the Department in 1975 as a clerk and received a number of promotions. She was transferred to VSPW in 1996 as a records manager, with the promise that she would continue to receive "inmate pay" (which apparently comprised certain enhanced salary benefits that emanate from handling inmates directly). At her interview for the new position, she announced her ambition to be promoted to a position as a correctional counselor. Kuykendall told her if she improved the VSPW records office, he would award her such a promotion.


[50] Mackey was aware of Kuykendall's sexual affairs with Bibb and Brown. In July 1997, Mackey learned that Brown, then associate warden of VSPW, believed Mackey had complained to Kuykendall concerning the sexual affair he was having with Brown. Mackey's supplemental "inmate pay" was withdrawn. Brown also subjected Mackey to verbal abuse in the presence of co-workers. Mackey believed these actions constituted a warning not to disclose the affair between Kuykendall and Brown. Mackey was certain that Brown was promoted to the position of associate warden not because of merit, but because of her sexual affair with Kuykendall. Mackey claimed Brown demeaned her in the presence of other employees and impeded the execution of Mackey's duties in various respects, and stated: "This situation created hostility among the employees in [Mackey's] Department." As observed by the Court of Appeal, "[t]he environment around the office became increasingly hostile because of Kuykendall's inability to control Brown." Mackey "felt powerless to take any action about the situation." Mackey was persuaded not to jeopardize her career, having observed the termination of the employment of another woman who had complained about Kuykendall's "improper affair." In September 1997, Mackey overheard Brown's telephone call to Miller and the next day observed Brown's physical assault on Miller. Mackey attempted to intervene to assist Miller. Miller told Mackey the assault occurred after she informed Brown she planned to complain concerning Brown's relationship with Kuykendall and "how it was affecting her career." Brown continued to demean Mackey in the presence of other employees and to interfere with the execution of her duties.


[51] According to Mackey, correctional employee Greg Mellott told Mackey that his wife, also a correctional employee, had heard arguments between Bibb and Brown concerning Kuykendall. In her declaration, Mackey stated that "Greg Mellott revealed to me that the sexual relationships Kuykendall was having with Bibb and Brown [were] creating an impossible environment for his wife to work in" and that his wife had filed a complaint "about the improper practices she experienced in her employment."


[52] Mackey was assured that her statements to the internal affairs investigator would be kept confidential, but they were not. Kuykendall subsequently reduced her responsibilities and denied her access to the work experience she needed in order to be promoted to the position of correctional counselor. Mackey testified in her deposition that she believed she failed to receive a promotion to that position because she was not sexually involved with Kuykendall.


[53] In addition, Brown repeatedly interrogated Mackey about her statements to the internal affairs investigator and attempted to contact Mackey outside of work. Stress led to health problems, and Mackey was unable to work between August 1998 and January 1999. Upon her return to work, Mackey was demoted and suffered further mistreatment and humiliation. A few months later she resigned, finding the conditions of employment intolerable. Mackey filed a government tort claim with the Department in February 1999 and filed a complaint with the Department of Fair Employment and Housing in March 1999. Mackey joined Miller in filing suit on June 15, 1999, alleging, among other claims, sexual discrimination and retaliation in violation of the FEHA.


[54] C.


[55] As noted, defendants moved for summary judgment or summary adjudication of issues. The trial court determined the evidence of the warden's sexual favoritism did not constitute discrimination or harassment under the FEHA and rejected plaintiffs' retaliation claim. Miller's cause of action for disability discrimination survived, but summary adjudication in favor of defendants was awarded on the remaining claims. Miller subsequently dismissed her complaint with its single remaining cause of action for disability discrimination; the court entered judgment in favor of defendants, and plaintiffs appealed.


[56] The Court of Appeal affirmed, concluding that a supervisor who grants favorable employment opportunities to a person with whom the supervisor is having a sexual affair does not, without more, commit sexual harassment toward other, nonfavored employees. According to the Court of Appeal, plaintiffs were in the same position as male employees who failed to acquire the benefits that Kuykendall accorded to Bibb, Patrick, and Brown. With respect to the claim that Kuykendall's behavior created an actionable hostile work environment, the appellate court observed: "Ignoring for the moment evidence of retaliation for threatened, or actual, reporting of the relationships, plaintiffs have demonstrated unfair conduct in the workplace by virtue of Kuykendall's preferential treatment of his various sexual partners. However, beyond the fact of those relationships and the preferential treatment, plaintiffs have not shown a concerted pattern of harassment sufficiently pervasive to have altered the conditions of their employment on the basis of sex. Plaintiffs were not themselves subjected to sexual advances, and were not treated any differently than male employees at [the prison]. Hence the trial court correctly concluded there is no evidentiary basis for plaintiffs' various sex discrimination and harassment claims."


[57] With respect to plaintiffs' claim that defendants retaliated against them because they protested practices forbidden by the FEHA, the Court of Appeal concluded that defendants properly had prevailed on plaintiffs' retaliation claim, evidently because the appellate court found the record demonstrated that plaintiffs did not exhibit a subjective belief, when they made their complaints, that they were reporting conduct prohibited by the FEHA or that they were complaining of sexual discrimination or sexual harassment.


[58] II.


[59] A.


[60] We emphasize at the outset that the present case comes to us on appeal from a grant of summary judgment and summary adjudication. A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); see also id., § 437c, subd. (f) [summary adjudication of issues].) The moving party bears the burden of showing the court that the plaintiff "has not established, and cannot reasonably expect to establish, a prima facie case . . . ." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) On appeal from the granting of a motion for summary judgment, we examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)


[61] B.


[62] The FEHA expressly prohibits sexual harassment in the workplace.*fn5 It is an unlawful employment practice "[f]or an employer . . . because of . . . sex . . . to harass an employee . . . ." (Gov. Code, § 12940, subd. (j)(1).) The FEHA also provides that "[sexual] [h]arassment of an employee . . . by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action." (Ibid.) For the purposes of the relevant provisions of the FEHA, " `harassment' because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions." (Id., § 12940, subd. (j)(4)(C).)


[63] According to the Fair Employment and Housing Commission (FEHC), the agency charged with administering the FEHA, harassment on any basis prohibited by the FEHA includes (but is not limited to) verbal harassment, including "epithets, derogatory comments or slurs on a basis enumerated in the Act"; physical harassment, including "assault, impeding or blocking movement, or any physical interference with normal work or movement, when directed at an individual on a basis enumerated in the Act"; and visual harassment, including "derogatory posters, cartoons, or drawings on a basis enumerated in the Act." (Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(1)(A),(B) & (C).) The regulations also specify that "[u]nwanted sexual advances which condition an employment benefit upon an exchange of sexual favors" constitute harassment. (Id., § 7287.6, subd. (b)(1)(D).) In the specific context of sexual discrimination, prohibited harassment may include "verbal, physical, and visual harassment, as well as unwanted sexual advances." (Id., § 7291.1 subd. (f)(1).)


[64] Past California decisions have established that the prohibition against sexual harassment includes protection from a broad range of conduct, ranging from expressly or impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances, to the creation of a work environment that is hostile or abusive on the basis of sex. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 607-608; see also Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414-1415.)*fn6 Such a hostile environment may be created even if the plaintiff never is subjected to sexual advances. (Mogilefsky v. Superior Court, supra, 20 Cal.App.4th at pp. 1414-1415.) In one case, for example, a cause of action based upon a hostile environment was stated when the plaintiff alleged she had been subjected to long-standing ridicule, insult, threats, and especially exacting work requirements by male co-workers who evidently resented a female employee's entry into a position in law enforcement. (Accardi v. Superior Court, supra, 17 Cal.App.4th at p. 347-348.)


[65] We have agreed with the United States Supreme Court that, to prevail, an employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. (See Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th at p. 130, relying upon Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21.) The working environment must be evaluated in light of the totality of the circumstances: "[W]hether an environment is `hostile' or `abusive' can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." (Harris v. Forklift Systems, Inc., supra, 510 U.S. at p. 23.)


[66] The United States Supreme Court has warned that the evidence in a hostile environment sexual harassment case should not be viewed too narrowly: "[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering `all the circumstances.' [Citation.] . . . . [T]hat inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. . . . The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . . . and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive." (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81-82; see also Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 517-518.)


[67] Our courts frequently turn to federal authorities interpreting Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) (Title VII) for assistance in interpreting the FEHA and its prohibition against sexual harassment. (See Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th at pp. 129-130; Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at p. 517.) Although the FEHA explicitly prohibits sexual harassment of employees, while Title VII does not, the two enactments share the common goal of preventing discrimination in the workplace. Federal courts agree with guidelines established by the Equal Employment Opportunity Commission (EEOC), the agency charged with administering Title VII, in viewing sexual harassment as constituting sexual discrimination in violation of Title VII. (See Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 64-65.) In language comparable to that found in the FEHA and in FEHC regulations, federal regulatory guidelines define sexual harassment as including unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that has the "purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." (29 C.F.R. § 1604.11(a)(3).)


[68] A lengthy policy statement issued by the EEOC has examined the question of sexual favoritism, relying in part upon a number of federal court decisions that have considered the kind of harassment claim brought by plaintiffs, namely one based principally on the favoritism shown by supervisors to employees who are the supervisors' sexual partners. (Ofc. of Legal Counsel, Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism (Jan. 12, 1990) No. N-915-048 in 2 EEOC Compliance Manual foll. § 615 (EEOC Policy Statement No. N-915-048.) In its 1990 policy statement, the EEOC observed that, although isolated instances of sexual favoritism in the workplace do not violate Title VII, widespread sexual favoritism may create a hostile work environment in violation of Title VII by sending the demeaning message that managers view female employees as " `sexual playthings' " or that "the way for women to get ahead in the workplace is by engaging in sexual conduct."*fn7 We believe the policy statement provides a useful guide in evaluating the issue before us.


[69] The EEOC policy statement is entitled Policy Guidance on Employer Liability under Title VII for Sexual Favoritism. It covers three topics: isolated favoritism, favoritism when sexual favors have been coerced, and widespread favoring of consensual sexual partners. The policy statement begins with an explanation that "[a]n isolated instance of favoritism toward a `paramour' (or a spouse, or a friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders. [Fn. omitted.] A female charging party who is denied an employment benefit because of such sexual favoritism would not have been treated more favorably had she been a man, nor, conversely, was she treated less favorably because she was a woman." (EEOC Policy Statement No. N-915-048, supra, § A, italics added.)*fn8


[70] The policy statement next explains the commission's position with respect to coerced sexual activity, including the situation in which the coercion results in employment benefits for a victim who is not complaining. Because coercion is not alleged in the present case, this element of the policy statement is not relevant to the question before us.


[71] Finally, the EEOC discusses sexual favoritism that is more than isolated and that is based upon consensual affairs: "If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors. In these circumstances, a message is implicitly conveyed that the managers view women as `sexual playthings,' thereby creating an atmosphere that is demeaning to women. Both men and women who find this offensive can establish a violation if the conduct is `sufficiently severe or pervasive "to alter the conditions of [their] employment and create an abusive working environment." ' [Citations.] [Fn. omitted.] An analogy can be made to a situation in which supervisors in an office regularly make racial, ethnic or sexual jokes. Even if the targets of the humor `play along' and in no way display that they object, co-workers of any race, national origin or sex can claim that this conduct, which communicates a bias against protected class members, creates a hostile work environment for them. [Citations.]" (EEOC Policy Statement No. N-915-048, supra, § C.)


[72] In addition, according to the EEOC, "[m]anagers who engage in widespread sexual favoritism may also communicate a message that the way for women to get ahead in the workplace is by engaging in sexual conduct or that sexual solicitations are a prerequisite to their fair treatment. [Fn. omitted.] This can form the basis of an implicit `quid pro quo' harassment claim for female employees, as well as a hostile environment claim for both women and men who find this offensive." (EEOC Policy Statement No. N-915-048, supra, § C.)


[73] To illustrate its point, the EEOC discussed Broderick v. Ruder (D.D.C. 1988) 685 F.Supp. 1269, in which the court concluded sexual favoritism contributed to a hostile work environment that violated Title VII. The plaintiff, in that case an attorney, alleged that two of her supervisors had given employment benefits to two secretaries with whom they were conducting sexual affairs and that another supervisor favored an attorney because of his sexual attraction to her. As the EEOC also noted, there were "isolated" unwanted sexual advances made to the plaintiff. The EEOC stressed the court's discussion of sexual favoritism in the workplace, which "undermined plaintiff's motivation and work performance and deprived plaintiff, and other . . . female employees, of promotions and job opportunities." (Broderick v. Ruder, supra, 685 F.Supp. at p. 1278; EEOC Policy Statement No. N-915-048, supra, § C.) The EEOC policy statement commented that, although the Broderick decision turned upon a hostile work environment analysis, the facts also could have supported an implied quid pro quo claim "since the managers, by their conduct, communicated a message to all female employees in the office that job benefits would be awarded to those who participated in sexual conduct. [Citations.]" (Ibid.)


[74] The one pertinent California decision generally indicates that the standards and reasoning embodied in the EEOC policy statement provide appropriate guidelines in interpreting and applying the relevant provisions of the FEHA. In Proksel v. Gattis (1996) 41 Cal.App.4th 1626, although the court rejected a claim based upon favoritism arising from a single affair in a small office, it recognized sexual favoritism could create a hostile environment. In dictum, the court in Proksel suggested that sexual favoritism by a manager may be actionable when it leads employees to believe that "they [can] obtain favorable treatment from [the manager] if they became romantically involved with him" (id. at p. 1629), the affair is conducted in a manner "so indiscreet as to create a hostile work environment," or the manager has engaged in "other pervasive conduct . . . which created a hostile work environment." (Id. at pp. 1629-1630.) The Court of Appeal in Proksel cited the Broderick decision (Broderick v. Ruder, supra, 685 F.Supp. 1269) and another federal court decision suggesting that overt manifestations of sexual favoritism may create a hostile work environment in violation of Title VII when they convey the message that a woman cannot be "evaluated on grounds other than her sexuality." (Drinkwater v. Union Carbide Corp. (3rd Cir. 1990) 904 F.2d 853, 862; see id. at p. 861, fn. 15.) Indeed, the concept of conduct that gives rise to a hostile work environment by creating a work atmosphere that is demeaning to women is not new. (See Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(1)(C) [stating that harassment may include the posting of derogatory images]; Accardi v. Superior Court, supra, 17 Cal.App.4th at pp. 347-348; EEOC v. Farmer Bros. Co. (9th Cir. 1994) 31 F.3d 891, 897 & fn. 3 [recognizing demeaning gender-based conduct as sexual harassment]; Lipsett v. University of Puerto Rico (1st Cir. 1988) 864 F.2d 881, 905 [recognizing the posting of lurid images as sexual harassment].)


[75] Following the guidance of the EEOC, and also employing standards adopted in our prior cases, we believe that an employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment. (See Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th at p. 130.) Furthermore, applying this standard to the circumstances of the present case, we conclude that the evidence proffered by plaintiffs, viewed in its entirety, established a prima facie case of sexual harassment under a hostile-work-environment theory. As we shall explain, a trier of fact reasonably could find from the evidence in the record set forth below that a hostile work environment was created in the workplace in question.


[76] C.


[77] Over a period of several years, Warden Kuykendall engaged concurrently in sexual affairs with three subordinate employees, Bibb, Patrick, and Brown. There was evidence these affairs began in 1991 and continued until 1998. The affairs occurred first while Kuykendall and the women worked at CCWF, then continued when these individuals all transferred to VSPW. Kuykendall served in a management capacity at both institutions and served as warden at VSPW. When Kuykendall transferred from CCWF to VSPW, there was evidence he caused his sexual partners to be transferred to the new institution to join him. There was evidence Kuykendall promised and granted unwarranted and unfair employment benefits to the three women. One of the unfair employment benefits granted to Brown evidently was the power to abuse other employees who complained concerning the affairs. When plaintiffs complained, they suffered retaliation (and they believed two other employees were similarly targeted). Kuykendall refused to intervene and himself retaliated by withdrawing previously granted accommodations for Miller's disability after she cooperated with the internal affairs investigation.


[78] Further, there was evidence that advancement for women at VSPW was based upon sexual favors, not merit. For example, Kuykendall pressured Miller and other employees on the personnel selection committee to agree to transfer Bibb to VSPW and promote her to the position of correctional counselor, despite the conclusion of the committee that she was not eligible or qualified. Committee members were told to set aside their professional judgment because Kuykendall wanted them to "make it happen."


[79] In addition, on two occasions Kuykendall promoted Brown to facility captain positions in preference to Miller, although Miller was more qualified. Brown enjoyed an unprecedented pace of promotion to the managerial position of associate warden, causing outraged employees to ask such questions as, "What do I have to do, `F' my way to the top?" Even Brown acknowledged that affairs between supervisors and subordinates were common in the Department and were widely viewed as a method of advancement. Indeed, Brown made it known to Miller that the facility captain promotion belonged to her because of her intimate relationship with Kuykendall, announcing that if she were not awarded the promotion she would "take him [Kuykendall] down" because she "knew every scar on his body."


[80] There also was evidence that Kuykendall promoted Bibb from clerical to correctional staff duties despite her lack of qualifications, and at the same time refused to permit Mackey to secure the on-the-job training that would have enabled her to make a similar advance. On the basis of her knowledge of Kuykendall's sexual affairs, Mackey believed the reason he denied her this opportunity was that she was not his sexual partner.


[81] The evidence suggested Kuykendall viewed female employees as "sexual playthings" and that his ensuing conduct conveyed this demeaning message in a manner that had an effect on the work force as a whole. Various employees, including plaintiffs, observed Kuykendall and Bibb fondling one another on at least three occasions at work-related social gatherings. One employee reported that Kuykendall had placed his arm around her and another female employee during one such social event, adding that Kuykendall had engaged in unwelcome fondling of her as well. Bibb and Brown bragged to other employees, including plaintiffs, of their power to extort benefits from Kuykendall. Jealous scenes between the sexual partners occurred in the presence of Miller and other employees. Several employees informed the internal affairs investigator that persons who were engaged in sexual affairs with Kuykendall received special benefits. When Miller last complained to Kuykendall, he told her that Brown was manipulative, adding he was "finished" with Brown and should have chosen Miller - a comment Miller reasonably took to mean that he should have chosen Miller for a sexual affair.


[82] There was evidence Kuykendall's sexual favoritism not only blocked the way to merit-based advancement for plaintiffs, but also caused them to be subjected to harassment at the hands of Brown, whose behavior Kuykendall refused or failed to control even after it escalated to physical assault. This harassment, apparently retaliatory, included loss of work responsibilities, demeaning comments in the presence of other employees, loss of entitlement to a pay enhancement and to disability accommodation, and physical assault and false imprisonment. Kuykendall explained to Miller that, because of his intimate relationship with Brown, he would not protect plaintiffs. In this manner, his sexual favoritism was responsible for the continuation of an outrageous campaign of harassment against plaintiffs.


[83] Considering all the circumstances "from the perspective of a reasonable person in the plaintiff's position" (Oncale v. Sundowner Offshore Services, Inc., supra, 523 U.S. at p. 81), and noting that the present case is before us on appeal after a grant of summary judgment, we conclude that the foregoing evidence created at least a triable issue of fact on the question whether Kuykendall's conduct constituted sexual favoritism widespread enough to constitute a hostile work environment in which the "message [was] implicitly conveyed that the managers view women as `sexual playthings' " or that "the way for women to get ahead in the workplace is by engaging in sexual conduct" thereby "creating an atmosphere that is demeaning to women." (EEOC Policy Statement No. N-915-048, supra, § C.) In terms we previously have borrowed from the United States Supreme Court in measuring sexual harassment claims, there was evidence of " `sufficiently severe or pervasive' " conduct that " ` "alter[ed] the conditions of [the victims'] employment" ' " such that a jury reasonably could conclude that the conduct created a work environment that qualifies as hostile or abusive to employees because of their gender. (Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th at p. 130.)


[84] D.


[85] In reaching its contrary conclusion, the Court of Appeal essentially conceded that widespread sexual favoritism could support a claim for sexual harassment if the accompanying conduct were sufficiently pervasive or severe, but concluded plaintiffs had failed to make an adequate showing in this respect, especially in the absence of any evidence that they had been sexually propositioned or that the sexual affairs were nonconsensual. But California law (like the EEOC policy statement quoted above) provides that plaintiffs may establish the existence of a hostile work environment even when they themselves have not been sexually propositioned. (Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at p. 519; Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at pp. 610-611; EEOC Policy Statement No. N-915-048, supra, § C, example 3.) Further, as the EEOC policy statement points out, even widespread favoritism based upon consensual sexual affairs may imbue the workplace with an atmosphere that is demeaning to women because a message is conveyed that managers view women as "sexual playthings" or that the way required to secure advancement is to engage in sexual conduct with managers. In focusing upon the question whether the sexual favoritism was coercive, the Court of Appeal overlooked the principle that even in the absence of coercive behavior, certain conduct creates a work atmosphere so demeaning to women that it constitutes an actionable hostile work environment.


[86] The Court of Appeal commented that the Broderick and Drinkwater decisions discussed not only evidence of widespread sexual favoritism but also the assertedly coercive effect of a supervisor's sexual advances to the plaintiff and of a generally sexually charged atmosphere. In Broderick, the court referred to pervasive "conduct of a sexual nature" and noted isolated instances in which sexual advances were made upon the plaintiff, but it also observed that the more important consideration was the effect of sexual favoritism on the work environment. (Broderick v. Ruder, supra, 685 F.Supp. at p. 1278.) Similarly, in Drinkwater the court, although referring to an atmosphere of "sexual innuendo" or a "sexually charged" work atmosphere created by a sexual affair, also explained that "[t]he theoretical basis for the kind of environmental claim alleged here is that the sexual relationship impresses the workplace with such a cast that the plaintiff is made to feel that she is judged only by her sexuality." (Drinkwater v. Union Carbide Corp., supra, 904 F.2d at p. 861 & fn. 15.) Again, the important and underlying inquiry in these cases was whether the conduct in question conveyed a message that demeans employees on the basis of their sex.


[87] Putting aside the question whether the Broderick and Drinkwater cases properly can be distinguished from the circumstances of the present case, we believe it is clear under California law that a plaintiff may establish a hostile work environment without demonstrating the existence of coercive sexual conduct directed at the plaintiff or even conduct of a sexual nature. (See Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at p. 519 [" `The plaintiff's work environment is affected not only by conduct directed at herself but also by the treatment of others' "]; Accardi v. Superior Court, supra, 17 Cal.App.4th at p. 345 [sexual harassment under a hostile-work-environment theory "does not necessarily involve sexual conduct. It need not have anything to do with lewd acts, double entendres or sexual advances"; see also Oncale v. Sundowner Offshore Services, Inc., supra, 523 U.S. at p. 80 ["harassing conduct need not be motivated by sexual desire"]; Mogilefsky v. Superior Court, supra, 20 Cal.App.4th at p. 1414; 2 Chin et al., Cal Practice Guide: Employment Litigation (The Rutter Group 2004) [¶][¶] 10:240-10:246, pp. 10-40-10-41.) Finally, we believe that even those courts focusing on a "sexually charged environment" would be satisfied that a triable issue of fact was presented by the evidence in this case, in view of the bragging, squabbling, and fondling that occurred.


[88] We stress that, because this is an appeal from a grant of summary judgment in favor of defendants, a reviewing court must examine the evidence de novo and should draw reasonable inferences in favor of the nonmoving party. (Wiener v. Southcoast Childcare Centers Inc., supra, 32 Cal.4th at p. 1142.) We believe the Court of Appeal failed to draw such inferences and took too narrow a view of the surrounding circumstances. (See Oncale v. Sundowner Offshore Services, Inc., supra, 523 U.S. at pp. 81-82; see also Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at pp. 517-518; Accardi v. Superior Court, supra, 17 Cal.App.4th at pp. 350-351.)


[89] Defendants attempt to counter plaintiffs' claims by referring to a number of the cases holding that isolated preferential treatment of a sexual partner, standing alone, does not constitute sexual discrimination. (See fn. 8, ante, at p. 21.) The Court of Appeal also cited these cases. In such instances, the discrimination is said to turn merely on personal preference, and male and female nonfavored employees are equally disadvantaged. Although we do not dispute the principle stated by these cases, we believe the Court of Appeal and defendants err in equating the present case with those cases. Whether or not Kuykendall was motivated by personal preference or by discriminatory intent, a hostile work environment was shown to have been created by widespread favoritism. As discussed, plaintiffs in the present case alleged far more than that a supervisor engaged in an isolated workplace sexual affair and accorded special benefits to a sexual partner. They proffered evidence demonstrating the effect of widespread favoritism on the work environment, namely the creation of an atmosphere that was demeaning to women. Further, as the EEOC policy statement observes, an atmosphere that is sufficiently demeaning to women may be actionable by both men and women.


[90] Defendants urge that, in the asserted absence of evidence that Kuykendall flaunted his consensual sexual affairs, coerced or sought to derive advantage from other employees in connection with them, or engaged in "open sexual conduct, sexual discussions, or other indiscreet behavior in the workplace," the facts of the present case show nothing more than the kind of standard sexual favoritism claim that has been rejected as a basis for liability under the FEHA and Title VII. We disagree. Again, defendants have overlooked the circumstance that widespread sexual favoritism may be actionable because of the effect it has on the work environment.


[91] Further, we question the factual premise of defendant's argument. There was evidence of considerable flaunting of the relationships affecting the workplace, consisting of Bibb's and Brown's bragging and the jealous scenes between these two women, along with Kuykendall's indiscreet behavior at a number of work-related social gatherings. The favoritism that ensued from the sexual affairs also was on public display, reflected in Kuykendall's permitting Brown to abuse plaintiffs, his directive to the interview committee to promote Bibb, and his repeated admissions that he would not or could not control Brown because of his sexual relationship with her. It may even be inferred that Kuykendall solicited sexual favors in return for employment benefits, in light of Bibb's and Brown's boasts, the sequence of promotions awarded by Kuykendall, and his comment to Miller, "I should have chose[n] you."


[92] To the extent defendants' contention is that a reasonable person in plaintiffs' position would not have found the work environment to have been hostile toward women on the basis of widespread sexual favoritism, we conclude that the lower courts erred in precluding plaintiffs from presenting this issue to a jury. The internal affairs investigation within the Department confirmed that Kuykendall's sexual favoritism occurred and was broadly known and resented in the workplace, and that several employees - including Brown - concluded that engaging in sexual affairs was the way required to secure advancement. There was evidence from which a jury reasonably could conclude that the entire scheme of promotion at VSPW was affected by Kuykendall's favoritism..


[93] Certainly, the presence of mere office gossip is insufficient to establish the existence of widespread sexual favoritism, but the evidence of such favoritism in the present case includes admissions by the participants concerning the nature of the relationships, boasting by the favored women, eyewitness accounts of incidents of public fondling, repeated promotion despite lack of qualifications, and Kuykendall s admission he could not control Brown because of his sexual relationship with her a matter confirmed by the Department s internal affairs report. Indeed, it is ironic that, according to defendants, a jury should not be permitted to consider evidence of widespread sexual favoritism that the Department itself found convincing.


[94] Finally, defendants warn that plaintiffs position, if adopted, would inject the courts into relationships that are private and consensual and that occur within a major locus of individual social life for both men and women - the workplace. According to defendants, social policy favors rather than disfavors such relationships, and the issue of personal privacy should give courts pause before allowing claims such as those advanced by plaintiffs to proceed. Defendants urge it is safer to treat sexual favoritism as merely a matter of personal preference, and to recall that the FEHA is not intended to regulate sexual relationships in the workplace, nor to establish a civility code governing that venue.


[95] We do not believe that defendants' concerns about regulating personal relationships are well founded, because it is not the relationship, but its effect on the workplace, that is relevant under the applicable legal standard. Thus, we have not discussed those interactions between Kuykendall and his sexual partners that were truly private. Moreover, the FEHA already clearly contemplates some intrusion into personal relationships. Specifically the FEHA recognizes that sexual harassment occurs when a sexual relationship between a supervisor and a subordinate is based upon an asserted quid pro quo.


[96] III.


[97] As noted, plaintiffs also alleged a cause of action for retaliation in violation of the FEHA.


[98] The FEHA protects employees against retaliation for filing a complaint or participating in proceedings or hearings under the act, or for opposing conduct made unlawful by the act. (Gov. Code, § 12940, subd. (h).) Specifically, section 12940, subdivision (h), declares that it is an unlawful employment practice for "any employer . . . or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part."


[99] This enactment aids enforcement of the FEHA and promotes communication and informal dispute resolution in the workplace. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476-477.) Employees may establish a prima facie case of unlawful retaliation by showing that (1) they engaged in activities protected by the FEHA, (2) their employers subsequently took adverse employment action against them, and (3) there was a causal connection between the protected activity and the adverse employment action. (Id. at p. 476.)


[100] Miller asserted she engaged in protected activity in complaining about "improper relationships and sexual favoritism" and that "[w]hen Miller complained to Warden Tina Farmon about Kuykendall's affair with Bibb, when she complained to Gerald Harris about the Warden's [Kuykendall's] affairs and resulting harassment, when she complained to Brown about the affairs and resulting harassment, when she told Kuykendall of Brown's assault and battery on her, when she participated in Internal Affairs investigation, and when she subsequently wrote to Richard Ehle that [the Department] had failed to protect her after she testified, she was opposing the hostile work environment at [the Department] which resulted from the Warden's sexual favoritism." Miller added that she engaged in protected activity in seeking accommodation for her physical disability, and complained that the resulting accommodation was withdrawn after she cooperated in the internal affairs investigation.


[101] Miller asserted that she suffered retaliation in a number of additional ways. She presented evidence that, in response to her complaints, supervisorial employees Brown and Yamamoto undermined her authority in various respects, publicly demeaned her, imposed additional onerous duties upon her, and subjected her to ostracism. Brown, a management employee, physically assaulted Miller in an effort to silence her, and threatened Miller with retribution as a result of Miller's cooperation with the internal affairs investigation. As previously noted, there was evidence that Kuykendall withdrew accommodations previously accorded Miller on account of her physical disability, and that he refused to curb Brown's abuse.


[102] Plaintiff Mackey claimed she "engaged in protected activity under the FEHA when she complained on numerous occasions about what she and other women perceived to be a hostile work environment based on the sexual affairs of the Warden and the unchecked harassment suffered as a result of those affairs. In 1997, she discussed with her superior, Edna Miller, the harassment by Brown which went unchecked because of the Warden's affair with Brown. Miller then raised the issue with a sex harassment advisor Gerald Harris and with Warden Kuykendall. Mackey complained to chief deputy warden Vicky Yamamoto and to Warden Kuykendall about Brown's assault on Miller which resulted from Miller's stating she would report the affairs and favoritism, and neither Yamamoto nor Kuykendall took appropriate corrective action. In 1998, Mackey complained to Internal Affairs about the sexual affairs, favoritism and the unchecked harassment which resulted."


[103] Mackey claimed she suffered retaliation, providing evidence she was deprived of eligibility for a promotion, lost special pay for inmate contact, suffered ostracism, and was reassigned to tasks well below her capacity. She also alleged that Brown verbally abused and threatened her as a result of Mackey's cooperation with the internal affairs investigation.


[104] Neither the trial court nor the Court of Appeal reached the question whether defendants had taken an adverse employment action against plaintiffs based on their complaints of sexual harassment, or the question whether there was a causal connection between the asserted protected activity and any adverse action, because each court determined that plaintiffs had failed to make a prima facie showing that they had engaged in protected activity by opposing sexual harassment that was prohibited by the FEHA.


[105] The Court of Appeal acknowledged that, under certain circumstances, a retaliation claim may be brought by an employee who has complained of or opposed conduct, even when a court or jury subsequently determines the conduct actually was not prohibited by the FEHA. Indeed, this precept is well settled. (Flait v. North American Watch Corporation, supra, 3 Cal.App.4th at p. 477 [the plaintiff may prevail "even if the harassment was not sufficiently severe or pervasive that it altered [the plaintiff's] work environment"]; Moyo v. Gomez (9th Cir. 1994) 40 F.3d 982, 985; Gifford v. Atchison, Topeka & Santa Fe Ry. Co. (9th Cir. 1982) 685 F.2d 1149, 1157.) An employee is protected against retaliation if the employee reasonably and in good faith believed that what he or she was opposing constituted unlawful employer conduct such as sexual harassment or sexual discrimination. (Flait v. North American Watch Corporation, supra, 3 Cal.App.4th at p. 477; see also E.E.O.C. v. Crown Zellerbach Corp. (9th. Cir. 1983) 720 F.2d 1008, 1013, fn. 2.)


[106] The Court of Appeal concluded, however, that although plaintiffs had opposed Kuykendall's conduct, they had not engaged in protected activity, because they had not expressed opposition to sex discrimination or sexual harassment. As the court understood the record, "[p]laintiffs were not complaining about sexual harassment but unfairness. This is not protected activity under the FEHA."


[107] The appellate court faulted plaintiffs for not having complained to defendants "that the affairs and related conduct created an atmosphere whereby they felt they were being judged on their sexuality rather than on merit. Neither woman claimed to have been propositioned by a supervisor, expressly or impliedly, or to have been the subject of unwanted sexual attention. Neither woman claimed that the atmosphere had become so sexually charged that they could no longer do their work. Rather, plaintiffs' complaints and reports concerned the unfairness of promotions and other benefits given to paramours and the resulting mistreatment of them by those paramours." The Court of Appeal added that plaintiffs had not complained that they "were being forced to work in an atmosphere where they had to run a gauntlet of sexual abuse or where they were judged on their sexuality rather than on the merits. This is not a situation where plaintiffs honestly, but mistakenly, believed they were engaging in protected activity by reporting sexual harassment. Plaintiffs did not even attempt to report sexual harassment."


[108] We have concluded above, contrary to the determination of the Court of Appeal, that the conduct plaintiffs complained of may constitute sexual harassment in violation of the FEHA. We do not believe employees should be required to elaborate to their employer on the legal theory underlying the complaints they are making, in order to be protected by the FEHA. (See Moyo v. Gomez, supra, 40 F.3d at p. 985 [in analyzing retaliation claims, courts should recognize that plaintiffs have limited legal knowledge]; Gifford v. Atchison, Topeka & Santa Fe Ry. Co., supra, 685 F.2d at p. 1157 ["It requires a certain sophistication for an employee to recognize that an offensive employment practice may represent sex or race discrimination that is against the law"]; see also Drinkwater v. Union Carbide Corp., supra, 904 F.2d at p. 866 [although the plaintiff's hostile work environment claim based upon isolated sexual favoritism did not survive summary judgment, her retaliation claim did - "[Union Carbide] is not free to retaliate against plaintiff simply because she has failed to build her sex discrimination claim properly," and she was not required "to guess the outcome of New Jersey law correctly"].) Furthermore, even if ultimately it is concluded defendants' conduct did not constitute a violation of the FEHA, we are not persuaded by defendant's claim that only an employee's mistake of fact, and not a mistake of law, may establish an employee's good faith but mistaken belief that he or she is opposing conduct prohibited by the FEHA. (See Moyo v. Gomez, supra, 40 F.3d at p. 985 [the employee's good faith "reasonable mistake may be one of fact or law"]; Drinkwater v. Union Carbide Corp., supra, 904 F.2d at p. 866 [sanctioning a retaliation claim in light of the plaintiff's reasonable belief concerning the law].)


[109] Particularly in view of the EEOC policy statement quoted at length above, whether or not a jury or a court ultimately concludes defendants' conduct constituted sexual harassment, employees such as plaintiffs reasonably could believe they are making a claim of sexual harassment in violation of the FEHA when they complain of sexual favoritism in their workplace. Although plaintiffs may not have recited the specific words "sexual discrimination" or "sexual harassment," the nature of their complaint certainly fell within the general purview of the FEHA, especially when we recall that this case is before us on review of a grant of summary judgment.


[110] The FEHA's stricture against retaliation serves the salutary purpose of encouraging open communication between employees and employers so that employers can take voluntary steps to remedy FEHA violations (Flait v. North American Watch Corp., supra, 3 Cal.App.4th at p. 476), a result that will be achieved only if employees feel free to make complaints without fear of retaliation. The FEHA should be liberally construed to deter employers from taking actions that would discourage employees from bringing complaints that they believe to be well founded. The act would provide little comfort to employees, and thereby would fail in its ameliorative purpose, if employees feared they lawfully could lose their employment or suffer other adverse action should they fail to phrase accurately the legal theory underlying their complaint concerning behavior that may violate the act.


[111] Similar concerns recently were expressed by the United States Supreme Court in commenting upon the need to protect whistle blowers who complained that a recipient of federal education funding intentionally discriminated on the basis of sex. (Jackson v. Birmingham Bd. of Educ. (2005) ___ U.S. ___ [125 S.Ct. 1497].) The court concluded that Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681, et seq. (Title IX)) provides the whistle blower with a private right of action for retaliation. The high court, observing that Title IX would be unenforceable if persons feared retaliation in the event they complained concerning discriminatory practices, stated: "Congress enacted Title IX not only to prevent the use of federal dollars to support discriminatory practices, but also `to provide individual citizens effective protection against those practices.' [Citation.] We agree with the United States that this objective `would be difficult, if not impossible, to achieve if persons who complain about sex discrimination did not have effective protection against retaliation.' [Citation.] If recipients [of federal funds] were permitted to retaliate freely, individuals who witness discrimination would be loathe to report it, and all manner of Title IX violations might go unremedied as a result. [Citation.] [¶] Reporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished. Indeed, if retaliation were not prohibited, Title IX's enforcement scheme would unravel." (Jackson v. Birmingham Bd. of Educ., supra, ___ U.S. at p. ___ [125 S.Ct. at p. 1508].)


[112] Defendants contend, and the Court of Appeal apparently concluded, that plaintiffs did not demonstrate that at the time of their complaints they held a subjective, good faith belief that they were complaining about sexual harassment. They assume such a subjective mental state must be demonstrated even when a plaintiff is not relying upon a good faith mistake. Whether or not this assumption is accurate, we conclude that the subjective belief of the plaintiffs before us may be inferred from the nature and content of their repeated complaints. The issue of a plaintiff's subjective, good faith belief involves questions of credibility and ordinarily cannot be resolved on summary judgment. (See, e.g., Flait v. North American Watch Corp., supra, 3 Cal.App.4th at p. 477.)


[113] Because the Court of Appeal concluded plaintiffs failed to establish that they were engaged in protected activity when they complained about potential sexual harassment, that court did not reach the question whether plaintiffs established a prima facie case on the remaining elements of their retaliation claim - specifically, whether plaintiffs suffered an adverse employment action in response to their sexual harassment complaints, and whether any adverse action was caused by their protected activity.*fn9 The court also did not reach defendants' claim that plaintiffs failed to file their administrative complaint within the period established by law. (See Gov. Code, § 12960, subd. (d) [plaintiffs must file their complaints with the FEHC within one year of the alleged unlawful employment practice].) We conclude it is appropriate to permit the Court of Appeal to address these questions in the first instance on remand.


[114] IV.


[115] For the foregoing reasons, the judgment of the Court of Appeal is reversed to the extent it is inconsistent with our opinion, and the matter is remanded to the Court of Appeal for further proceedings consistent with this opinion.


[116] WE CONCUR: KENNARD, J., BAXTER, J., WERDEGAR, J., CHIN, J., MORENO, J.


[117] Review Granted XXX 105 Cal.App.4th 945



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Opinion Footnotes

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[118] *fn1 Having been informed that plaintiff Frances Mackey died in 2003, we have substituted her son Sterling Odom as a party in his capacity as personal representative of her estate. We have designated plaintiff Edna Miller as the lead plaintiff and have retitled the case accordingly.


[119] *fn2 The other causes of action were for sexual discrimination in violation of public policy, retaliation in violation of public policy, disability discrimination in violation of the FEHA and public policy (Miller), negligent retention and promotion, invasion of privacy, assault and battery (Miller), false imprisonment (Miller), defamation, and intentional infliction of emotional distress.


[120] *fn3 The trial court sustained defendants' hearsay objection to a similar statement contained in Miller's declaration, but our review of the record indicates defendants failed to object to the deposition testimony reciting the same statement. Defendant's failure to object to the deposition testimony bars any hearsay objection on appeal. (Code Civ. Proc., § 437c, subd. (b)(5) ["[e]videntiary objections not made at the hearing shall be deemed waived"]; id., § 437c, subd. (c); Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186-1187, fn. 1, disapproved on another ground in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1.) In this court, defendants complain that plaintiffs have referred to evidence that was excluded by the trial court, although they fail to specify to which of plaintiffs' references they object. We have examined the trial court's evidentiary rulings and are satisfied that our statement of facts does not contain references to evidence that was excluded by that court. Defendants claim that we should refer only to facts that appear in the Court of Appeal's opinion, on the ground that plaintiffs did not petition for rehearing with respect to the Court of Appeal's recitation of facts. We are not persuaded. Although as a matter of policy we normally will accept the Court of Appeal opinion's statement of the facts (Cal. Rules of Court, rule 28(c)(2)), our review of a grant of summary judgment or summary adjudication is de novo and we examine the record independently of the Court of Appeal and the trial court. We consider "all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) . . . ." (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)


[121] *fn4 As noted, Miller also filed a disability discrimination claim. In October 1995, Miller was diagnosed with sarcoidosis, and the resulting inflammation affected her ability to walk. Initially, Kuykendall met her need for a flexible schedule and made other accommodations, but late in 1998 these accommodations began to be withdrawn.


[122] *fn5 Plaintiffs asserted claims for sexual discrimination and sexual harassment under the FEHA. In their complaint, plaintiffs styled these claims as constituting a single cause of action, and the Court of Appeal treated them as such. As we noted in Reno v. Baird (1998) 18 Cal.4th 640, 646, 657, however, claims for sexual discrimination and sexual harassment are distinct causes of action, each arising from different provisions of the FEHA. Plaintiffs based their sexual discrimination and harassment claim on the same circumstances, and the thrust of their argument in the trial court, the Court of Appeal, and this court has been that they were subjected to sexual harassment. Observing that sexual harassment is a form of sexual discrimination (see Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 348, and cases cited; see also Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129 [harassment on the basis of race is a form of employment discrimination]), the Court of Appeal analyzed plaintiffs' claim principally under the law applicable to sexual harassment, and we shall do the same.


[123] *fn6 Some cases draw a sharp distinction between the two types of harassment, namely so-called quid pro quo and hostile work environment harassment. (See Fisher v. San Pedro Peninsula Hosp., supra, 214 Cal.App.3d at p. 607.) Later cases have acknowledged that the two theories of liability are intertwined. (See Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 751; Mogilefsky v. Superior Court, supra, 20 Cal.App.4th at p. 1415; Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 1005 [characterizing the two types of harassment as not distinct forms of harassment but "poles of a continuum"], disapproved on another point in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664.)


[124] *fn7 The policy statement was issued in 1990 by the EEOC and specifies that it was approved by Clarence Thomas - then the Chairperson of the EEOC and now an Associate Justice of the United States Supreme Court.


[125] *fn8 This portion of the EEOC policy statement reflects the position of a great majority of federal courts. (See DeCintio v. Westchester County Medical Center (2d Cir. 1986) 807 F.2d 304, 308; see also Schobert v. Illinois Dept. of Transp. (7th Cir. 2002) 304 F.3d 725, 733; Womack v. Runyon (11th Cir. 1998) 147 F.3d 1298, 1300; Taken v. Oklahoma Corp. Com'n. (10th Cir. 1997) 125 F.3d 1366, 1369-1370.)


[126] *fn9 The only aspect of the Court of Appeal's discussion that pertained to the issue of causation concerned Miller's claim of retaliation on the basis of her demand for disability accommodation.

Porter v. California Dep't of Corrections, 419 F.3d 885 (9th Cir. 08/05/2005)

[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


[2] No. 02-16537


[3] 419 F.3d 885, 2005 Daily Journal D.A.R. 9496, 05 Cal. Daily Op. Serv. 6943, 2005


[4] August 5, 2005


[5] LAWANA PORTER, PLAINTIFF-APPELLANT,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, DEFENDANT-APPELLEE.


[6] Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, District Judge, Presiding D.C. No. CV-00-00978-FCD


[7] Counsel


[8] Steven A. Hirsch and Daniel E. Jackson, Keker & Van Nest, San Francisco, California, for the plaintiff-appellant.


[9] Bill Lockyer, Attorney General; Jacob A. Appelsmith, Senior Assistant Attorney General; Vincent J. Scally Jr., Supervising Deputy Attorney General; and Diana L. Cuomo, Deputy Attorney General, Sacramento, California, for the defendant-appellee.


[10] The opinion of the court was delivered by: Callahan, Circuit Judge.


[11] FOR PUBLICATION


[12] Argued and Submitted February 11, 2004-San Francisco, California


[13] Filed September 10, 2004; Amended August 5, 2005


[14] Before: Mary M. Schroeder, Chief Judge, Richard C. Tallman, and Consuelo M. Callahan, Circuit Judges.


[15] The petition for rehearing is otherwise DENIED.


[16] OPINION


[17] In May 2000, Lawana Porter filed a complaint pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, against the California Department of Corrections ("CDC"). Porter alleged that she was the victim of continuing sexual harassment, discrimination and retaliation as a result of her rejection of sexual advances by correctional officers Terry Wheeler and Pete DeSantis in 1995 and 1996.


[18] The district court granted the CDC's motion for summary judgment, holding that (1) the temporal gap between the complaints of sexual harassment and the alleged acts of retaliation precluded Porter from showing a causal link; and (2) the alleged incidents of sexual harassment could not be considered with the allegations of retaliation for the purpose of stating a viable cause of action.


[19] On appeal, Porter makes two primary arguments. First, she argues that the district court erred in holding as a matter of law that she could not prove her retaliation claim because too much time elapsed between her reports of harassment and the CDC's retaliatory acts. Second, she asserts that the district court erred in holding as a matter of law that her sexual harassment claim was barred because "the many hostile acts directed against her within the limitations period bore no relation to the pervasively hostile working environment on which she based her claim."


[20] We agree with Porter and reverse the district court. We hold that, although Porter's claims for harassment in 1995 and 1996 are time-barred, Porter is not precluded from attempting to show a causal link between the earlier harassment and more recent alleged acts of discrimination or retaliation.


[21] I. Background


[22] Porter has been employed as a correctional officer by the CDC since June 1995. In opposition to the CDC's motion for summary judgment, she offered sufficient evidence to support the inferences and allegations detailed below.*fn1


[23] A. Wheeler


[24] Shortly after Porter started working at the CDC, Sergeant Wheeler began visiting her while she was on duty and asked her to go out with him. Porter declined, stating that she had been taught at the academy that subordinates did not date supervisors.


[25] A few days later, Wheeler asked Porter to go to Reno with him and when Porter declined, Wheeler told her to talk to her "buddy," Correctional Officer Pat Thompson. At that time, Porter was living with Thompson and his wife. When Porter got home, Thompson told her that CDC was getting ready to "roll-over" part-time employees to full-time, and that he and Wheeler had made a deal that if Thompson arranged for Porter to go to Reno with Wheeler, Wheeler would make sure that Thompson was rolled over to full-time employment.


[26] A couple of days later, when Porter crossed a patio at work, Wheeler yelled her name and asked her if she had talked to her "buddy" about the Reno trip. Porter said she had and she was not going. Wheeler told her she would go to Reno with him because he "owned her." When Porter turned away, Wheeler raised his voice and threatened that "nobody walks away from me."


[27] After this incident, Porter told a sergeant about Wheeler's conduct. A lieutenant then asked Porter to submit a written report, which she did on November 19, 1995. Porter subsequently met with one of the CDC's equal employment opportunity ("EEO") counselors, who prepared a written sexual harassment complaint. Lieutenant McDonald was assigned to conduct an investigation.


[28] McDonald concluded his investigation at the end of January 1996. He determined that Wheeler had asked Porter out on dates and spoken to Thompson about his desire to date Porter. In February 1996, an "Employee Counseling Record" was placed in Wheeler's supervisory file for three months. Wheeler was instructed to "cease any further behavior on the work site toward [Porter] 'of a personal nature' " and to attend the next sexual-harassment prevention class.


[29] Later in 1996 or 1997, when Porter was working under Wheeler's supervision, Wheeler began to eat her Chinese food during a meal break. When Porter complained, Wheeler spat into the food and handed it back to Porter. Porter perceived this as retaliatory because she had reported him for sexual harassment. In early January 1998, Wheeler went to the Office of Personnel Assignments ("OPA") to prevent Porter from working on the Lassen Yard. At another time, Wheeler told another sergeant in Porter's presence, "what is that fucking bitch doing on my yard?"


[30] B. DeSantis


[31] A week before her scheduled interview with McDonald in 1995, Porter contacted Correctional Officer Pete DeSantis, president of the local chapter of the California Correctional Peace Officer Association ("CCPOA"), and asked him to represent her. A couple of days after the interview, DeSantis telephoned Porter at home in the late evening and inquired if she was feeling better. Porter stated that she would feel better if the investigation was over. DeSantis responded that he could make her feel better. He told her that he "could make her crawl all over her bed with his tongue."


[32] A couple of days later, in another phone call, DeSantis again asked Porter if she was feeling better. When she replied that she was not, DeSantis reminded her of how he could make her feel better. Porter unsuccessfully attempted to steer the conversation back to the investigation and then told DeSantis that she had to get off the phone.


[33] A few days, later DeSantis called Porter at home to tell her about the CDC's Winter Dance Festival. He told her she should attend and stated that she would be safe because his wife would be there. The following day DeSantis called Porter and asked if she wanted to go to Reno with him to pick up union supplies. Porter told him she was not interested. Porter did go to the Winter Dance. While there, DeSantis motioned to her to come up to him and, pointing out his wife, indicated that Porter was safe because his wife was there.


[34] Shortly thereafter, DeSantis called Porter at home and asked her to go with him to a union convention in Sacramento. He said they would get two rooms, but stay together until his wife got there. He asked Porter to bring a purple negligee. Porter said she was not interested. In a subsequent telephone conversation she agreed to go, but in a later conversation "she became angry with DeSantis and changed her mind." Porter called DeSantis an "asshole," and told him what he was doing was wrong. When she asked what would happen if she told his wife, DeSantis responded that he had already told his wife that Porter was a "whore." Thereafter, DeSantis ceased calling.


[35] These conversations occurred between November 1995 and February 1996. Porter did not complain to the CDC about DeSantis nor did she request new union representation. Porter alleges that she told Lieutenant McDonald, during his investigation of Wheeler, about DeSantis' comments at the Winter Dance and his invitation to go to Reno.


[36] C. Reprisals


[37] DeSantis became a sergeant in February 1996. Porter alleges that in July 1996, DeSantis told correctional officer Scott Porter, Porter's then boyfriend and now husband, that he better "watch out," that Porter was a "whore" and would sleep with anyone.


[38] In August 1997, shortly after Porter finished her apprenticeship program, she called OPA seeking to be assigned a post other than a first watch post.*fn2 DeSantis told her that there were no jobs available. Porter checked the master list and saw that other watches were available. She again called OPA and talked to Officer Leitaker, who worked under DeSantis. Porter heard "DeSantis tell Leitaker that there were currently no jobs open, for her." (Emphasis in district court's decision.)


[39] In January 1998, Porter was assigned to a second watch job, and at around the same time, DeSantis became the Personnel Assignment Sergeant in OPA. Porter went to OPA five or six times in 1998 and verbally requested vacations and holidays. Each time she asked DeSantis if there were any open holidays, he told her, in front of Officer Leitaker, "not for you."


[40] Porter also sought three different transfers in 1998. In May, Porter requested a transfer to post R0227, even though Wheeler was the supervising officer for part of the post. Porter did not receive the assignment, and she alleges that DeSantis denied her the post and gave it to Pat Thompson. In June 1998, Lieutenant Anglea asked Porter if she was interested in post R0245. According to Porter, Wheeler, who was the supervisor for part of the post, went to DeSantis and told him that he did not want Porter. DeSantis did not give the post to Porter.


[41] That same month, Sergeant Knigge asked Porter if she wanted to transfer to R0222. Porter expressed interest, so Knigge filled out an assignment-change request, and in July 1998, Lieutenants Orr and Anglea signed off on the assignment change. DeSantis cancelled the transfer. Porter contends that Orr and Leitaker were surprised by DeSantis' actions and considered the cancellation suspicious. The CDC, however, presented evidence that another sergeant had contacted DeSantis and complained that his unit was assigned a disproportionate number of apprentices compared to other units. The CDC represented that DeSantis reviewed the distribution, determined it was disproportionate, and remedied the problem by utilizing post R0222 as an apprentice position.


[42] In September, after DeSantis cancelled Porter's transfer to post R0222, Lieutenant Anglea asked Porter, "What did you do to piss DeSantis off?" When Porter told Anglea about DeSantis' prior actions, Anglea filed a complaint and reported the matter to Margene Ford, the Associate Warden, and to the CDC's EEO Coordinator, without asking Porter if she desired such recourse. Subsequently, the warden decided that an EEO investigation was required.


[43] Between September and November 1998, Porter met several times with Ford. Porter asked Ford not to have anyone local investigate the complaint and Ford agreed. Nonetheless, Porter received an interview memorandum stating that a Sacramento office of the CDC had appointed a local officer to interview Porter. When Porter called the CDC's EEO office in Sacramento, the office said that it knew nothing about the appointment. Porter was called for a meeting with Ford. Ford was angry and yelled at Porter for going "over her head" to Sacramento. Ford told Porter that things were going to get rougher; she asked Porter, "what the hell's wrong with you?" Ford said, "I'm telling you, you can trust me and you're looking at me like I'm a liar."


[44] The Discrimination Complaint Unit of the CDC asked Porter to prepare a handwritten report of her complaint, which she did on October 15, 1998. Porter also filed a formal complaint for retaliation and sexual harassment. On one occasion during the investigation, DeSantis stood with his arms crossed, and stared at plaintiff for almost five minutes. The investigation ended in February 1999 with a determination that Porter's factual allegations were not sustained.


[45] Porter filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on April 21, 1999, and filed her civil action on May 3, 2000.


[46] Meanwhile, Porter was off work on medical leave from November 6, 1998, to September 5, 2000. In December 1998, the union president called Porter at home and told her that she was not to come on the grounds of the CDC because she was a liability. In January 1999, Porter received a memo from the CDC stating that she had failed to get her annual tuberculosis test and warning that if she did not get one, she would be subject to disciplinary action up to and including termination. Porter was told by the Return to Work Coordinator at the CDC that she would have to go to her personal physician because she was not allowed on the grounds.


[47] In addition, while still on medical leave, Porter continued to receive notices of job changes and calls at home that she was absent without leave. She received a memo stating that she had failed to take a mandatory Use of Force Class and was subject to disciplinary action up to and including termination. She also discovered that a negative performance evaluation that was supposed to have been removed from her file was still in her file.


[48] Once she returned to work, Porter was told she should use the back gate "so that she would have limited contact with correctional staff." When she called the watch office to check in at the back gate, the office would hang up on her or insult her. In January 2001, when Porter was working at an entrance at which she was required to check all identification cards before allowing anyone to enter, a number of officers refused to present their identification cards and began yelling and kicking the doors, banging the windows, and yelling obscenities and personal insults.


[49] II. The District Court's Decision


[50] The district court found that pursuant to 42 U.S.C. § 2000e-5(e)(1) Porter was required to file an employment discrimination charge with the EEOC within 300 days after the "alleged unlawful employment practice occurred." The court concluded that because Porter filed her complaint with the EEOC on April 21, 1999, her claims were barred if based on acts that occurred prior to June 26, 1998.


[51] Reviewing the Supreme Court's then recent opinion in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the district court granted the CDC's motion for summary judgment, holding that (a) Porter's allegations based on a sexually hostile work environment in 1995 and 1996 were barred by her failure to file a claim within 300 days of any one of the acts; (b) the more recent allegations of harassment or retaliation were different in nature than the earlier allegations of sexual harassment and, therefore, could not be part of a continuing violation; and (c) pursuant to Clark County School District v. Breeden, 532 U.S. 268 (2001), the passage of time barred Porter from showing a causal link between protected activity and adverse employment action. Alternatively, the district court also found that Porter had not presented evidence indicating that the CDC's reasons for executing the adverse employment actions were merely pretexts for retaliation.


[52] III. Standard of Review


[53] Summary judgment is proper if the materials before the district court "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56 (c); Celotex Corp. v. Catrett, 477 U.S. 321, 322 (1986).


[54] In considering a motion for summary judgment, the court must examine all the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). At the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n., 809 F.2d 626, 630-31 (9th Cir. 1987). However, once the moving party meets the requirements of Rule 56 by showing there is an absence of evidence to support the non-moving party's case, the burden shifts to the party resisting the motion, who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).


[55] We review the district court's order granting summary judgment de novo, drawing "all reasonable inferences supported by the evidence in favor of the non-moving party." Villiarimo v. Aloha Island Air, Inc. 281 F.3d 1054, 1061 (9th Cir. 2002). "In reviewing an order denying or granting summary judgment, we must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law." Ray v. Henderson, 217 F.3d 1234, 1239-40 (9th Cir. 2000).


[56] IV. Discussion


[57] A. Sexual Harassment


[58] In Morgan, the Supreme Court held that an employee such as Porter, who initially files a charge of discrimination with a state agency in a state like California, must file a charge with the EEOC within 300 days of the alleged unlawful employment practice in order to preserve the claim for a subsequent civil action under 42 U.S.C. § 2000e-5(e)(1). 536 U.S. at 109. The Court explained:


[59] [D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the . . . 300-day time period after the discrete discriminatory act occurred. The existence of past acts and the employee's prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim.


[60] Id. at 113.


[61] Thus, the district court correctly determined that any claim that Porter sought to assert for a discrete discriminatory act that occurred before June 26, 1998, was not actionable. Nonetheless, the district court failed to appreciate evidence indicating that at least one discrete act had occurred within the 300-day time frame; in particular, DeSantis' decision to deny Porter's request to transfer to the R0222 position. See id. at 114 (listing the "denial of transfer" as one example of a discrete act).


[62] 1. Hostile Environment


[63] Porter's briefing does not specify whether she is alleging quid-pro-quo or hostile work environment sexual harassment. Since the facts are sufficient to establish a prima facie case of hostile work environment harassment, however, we leave for another day the question of whether quid-pro-quo liability attaches when an alleged harasser, who was not in a position to exact reprisals at the time his advances were rejected, is subsequently entrusted with and abuses such authority.*fn3


[64] We now turn to Porter's hostile-environment claim and the question of whether it is time barred. In order for this claim to survive summary judgment, Porter must show that: (1) she was subjected to verbal or physical conduct of a sexual nature; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment. See Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir. 2004). The district court did not analyze whether Porter had submitted evidence to create a genuine issue of material fact as to these elements, but found that the claim was time barred.


[65] [1] In Brooks v. City of San Mateo, we suggested that a hostile environment may result from a single instance of sexual harassment if the harassing conduct is sufficiently severe. 229 F.3d 917, 925-27 (9th Cir. 2000). With the exception of sexual assault, few types of harassing conduct are more extreme than thrusting explicit sexual propositions toward an employee and then executing reprisals against her for resisting the advances.


[66] Given that, it would be tempting to conclude that all the offensive activities that Porter allegedly encountered between 1995 and 2001 are both timely and actionable as different "part[s] of the same unlawful employment practice." Morgan, 536 U.S. at 122. But we believe that such an approach would blur to the point of oblivion the dichotomy between discrete acts and a hostile environment. See id. at 114-15.


[67] [2] As the Supreme Court emphasized, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 113; see also Cherosky v. Henderson, 330 F.3d 1243, 1245-47 (9th Cir. 2003) (declining to treat a series of related employment decisions as a pattern or practice, but finding that each decision was a discrete act). Consequently, we refuse to mix recent discrete acts like tinder with the planks of ancient sexual advances and then, regardless of whatever it was that set the spark in the furnace, call the fire that ignites therefrom a hostile environment. If the flames of an allegedly hostile environment are to rise to the level of an actionable claim, they must do so based on the fuel of timely non-discrete acts.*fn4


[68] [3] When the ashes are sifted, the bulk of the conduct attributed by Porter to the CDC and its agents falls into the category of discrete acts; for instance, refusing to grant Porter's requests for vacation or holidays, requiring Porter to be tested for tuberculosis by her own physician, threatening disciplinary action while she was on medical leave, leaving a negative performance evaluation in her personnel file, and instructing her to enter the work site through the back gate. That leaves the following allegations of non-discrete acts: Wheeler and DeSantis sexually propositioned Porter and made offensive comments to her or about her in 1995 and 1996; Wheeler ate and then spat in Porter's food in 1996 or 1997; Wheeler referred to her as a "fucking bitch" when she showed up on his yard in 1998; DeSantis told another correctional officer that Porter was a "whore" in 1996 and glared at her during the investigation that commenced in October 1998; Ford made angry remarks to her in 1998; and unnamed officers began yelling insults and obscenities at her when she demanded to see their identification in 2001.


[69] Obviously, some of these alleged events occurred after June 26, 1998. Thus, to determine whether all of these events constitute "one unlawful employment practice," Morgan, 536 U.S. at 118, we consider whether they were "sufficiently severe or pervasive," and whether the earlier and later events amounted to "the same type of employment actions, occurred relatively frequently, [or] were perpetrated by the same managers." Id. at 116, 120 (citations and internal quotation marks omitted).


[70] Analyzing the more recent allegations first, there is nothing to suggest that Ford's statements or the insults hurled by unnamed officers were sexually charged, or that these statements would not have been directed toward Porter if she was a man. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (confirming that Title VII is not "a general civility code for the American workplace"). Likewise, there is no evidence linking these comments and contumelies to the actions of Wheeler or DeSantis. Thus, the messages dispatched to Porter by Ford and the unnamed officers are not connected to the same hostile-environment practice as the conduct ascribed to Wheeler and DeSantis. Moreover, standing by themselves, these statements are not sufficiently severe or pervasive to support a hostile-environment claim.


[71] The remaining allegations all concern behavior on the part of Wheeler and DeSantis, some of which occurred after June 26, 1998. In particular, DeSantis glared at Porter in an intimidating fashion sometime after October 1998, and Wheeler referred to her in derogatory terms at some unspecified point that same year. While the record does not suggest that DeSantis and Wheeler harassed Porter frequently after 1997, it does indicate that their behavior at pertinent points between 1995 and 1998 involved the same type of sexist activity; to wit, intimidating or demeaning the value of female employees who do not submit to demands for sexual favors.


[72] Of course, the conduct in which Wheeler and DeSantis allegedly engaged became less severe, humiliating and pervasive in 1997 and 1998 than it had been in 1995 and 1996. Nonetheless, the Supreme Court's holding in Morgan does not call for the most egregious of the harassing events to occur within the 300-day period, nor does it demand that the harassing conduct continue to escalate over time in order for a hostile-environment claim to be actionable. 536 U.S. at 117.


[73] [4] Viewed from this perspective, and in the light most favorable to Porter, the record contains sufficient evidence to permit an inference that Wheeler and DeSantis had created a sexually hostile environment that persisted beyond June 26, 1998. Much of their alleged verbal and physical conduct was of an unwelcome sexual nature and, when taken together as a whole, it was sufficiently severe and pervasive to create an abusive work environment. Therefore, we hold that Porter's hostile-environment claim is not time barred and remand to the district court for further proceedings consistent with this opinion. In so doing, we express no opinion as to whether the CDC may avail itself of the affirmative defense outlined by the Supreme Court in Faragher, 524 U.S. at 807-08.


[74] B. Retaliation


[75] In order to establish a prima facie case of retaliation, Porter must demonstrate that (1) she had engaged in protected activity; (2) she was thereafter subjected by her employer to an adverse employment action; and (3) a causal link existed between the protected activity and the adverse employment action. See Ray, 217 F.3d at 1240. If Porter provides sufficient evidence to show a prima facie case of retaliation, the burden then shifts to the CDC to articulate a legitimate, non-retaliatory reason for its actions. See id. If the CDC sets forth such a reason, Porter bears the ultimate burden of submitting evidence indicating that the CDC's proffered reason is merely a pretext for a retaliatory motive. See id.


[76] 1. Porter's Prima Facie Case of Retaliation


[77] The district court found that Porter's evidence was sufficient to create a genuine issue of material fact as to the first two prongs of the prima facie case. However, the court concluded, citing Breeden, that Porter could not show a causal link between the protected activity and the post change denials because of the temporal gap between these events. This determination misinterprets Breeden.


[78] The plaintiff in Breeden claimed her transfer was in retaliation for her complaint about a comment her male supervisor made when reviewing job applications, and for her filing a complaint with the EEOC. 532 U.S. at 273. The Supreme Court questioned the merits of the plaintiff's underlying complaint*fn5 and stated that there was no indication that the assistant superintendent knew about the right-to-sue letter when she proposed transferring plaintiff. Id. The Court continued:


[79] [I]f one presumes she knew about it, one must also presume that she (or her predecessor) knew almost two years earlier about the protected action (filing of the EEOC complaint) that the letter supposedly disclosed. . . . The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close. Action taken (as here) 20 months later suggests, by itself, no causality at all.


[80] Id. at 273-74 (emphasis in original, internal quotation marks and citations omitted).


[81] [5] Breeden cannot be read as holding that causality is dependent, as a matter of law, on temporal proximity. Although a lack of temporal proximity may make it more difficult to show causation, "circumstantial evidence of a 'pattern of antagonism' following the protected conduct can also give rise to the inference." Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3rd Cir. 1997) (citation omitted). The Third Circuit explained:


[82] It is important to emphasize that it is causation, not temporal proximity itself, that is an element of plaintiff's prima facie case, and temporal proximity merely provides an evidentiary basis from which an inference can be drawn. The element of causation, which necessarily involves an inquiry into the motives of an employer, is highly context-specific. When there may be valid reasons why the adverse employment action was not taken immediately, the absence of immediacy between the cause and effect does not disprove causation.


[83] Id. at 178.


[84] Our cases are consistent with this approach. In Coszalter v. City of Salem, 320 F.3d 968, 977-78 (9th Cir. 2003), we cautioned that a "specified time period cannot be a mechanically applied criterion. A rule that any period over a certain time is per se too long (or, conversely, a rule that any period under a certain time is per se short enough) would be unrealistically simplistic." In Winarto v. Toshiba America Electronics Components, Inc., 274 F.3d 1276, 1287 n.10 (9th Cir. 2001), the majority rejected the dissent's argument that Breeden precluded the inferences drawn by the jury below.


[85] As a valid reason for the delay between her alleged protected activities and the claimed adverse actions, Porter points out that DeSantis was not in a position to retaliate until after he became the Personnel Assignment Sergeant in the OPA. This position finds support in both controlling and persuasive authorities. See Keyser, 265 F.3d at 752 n.4; Kachmar, 109 F.3d at 178. Moreover, Porter does not rely on "mere temporal proximity," Breeden, 532 U.S. at 273, but offers other evidence to support the inference of a retaliatory motive.


[86] [6] For instance, the "not for you" sneers of DeSantis imply that Porter's shift, post or vacation requests might have been granted if they were from any employee except Porter. Moreover, as noted above, Porter's evidence permits an inference that DeSantis and Wheeler conditioned the terms and conditions of her employment, at least impliedly, on her submission to sexual conduct - which includes the connoted threat that the terms and privileges of her employment would be unfavorable if she spoke out against their propositions or otherwise refused them. Wheeler eating Porter's food without permission, and then spitting in what was left of it, and DeSantis's intimidating glare, are crude displays of each supervisor's willingness to carry through on the thinly-veiled deterrents. We therefore conclude that Breeden does not fore-close the inference of a causal link in this case, and hold that Porter's evidence established genuine issues of material fact to support her prima facie case of retaliation.*fn6


[87] 2. Porter's Evidence of Pretext


[88] The district court further surmised that the CDC had offered a legitimate reason for denying Porter's transfer requests, and that Porter had failed to present evidence showing that the explanation was pretextual. Thus, the district court determined that the CDC was still entitled to summary adjudication of the retaliation claim even if Porter's evidence had established a prima facie case. We do not agree.


[89] [7] Just as DeSantis's deviations from the CDC's protocol support an inference of pretext for purposes of Porter's quid pro quo claim, so too do these irregularities in the process permit an inference of pretext with regard to the retaliation claim. To conclude otherwise would be anomalous. Therefore, we reverse the district court's summary adjudication of this claim, and remand for further proceedings.


[90] V. Conclusion


[91] Porter's allegations contend that she has been the victim of sexual harassment and retaliation almost from the day she accepted employment with the CDC. When she filed a complaint with the EEOC in 1999, her claims for sexual harassment in 1995 and 1996 were time barred. We hold, however, that she submitted sufficient evidence to establish genuine issues of material fact as to whether she had been subjected to sexually harassing conduct that continued into the limitations period, and whether the timely adverse employment actions that she allegedly suffered were reprisals for her protected activities.


[92] REVERSED AND REMANDED.



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Opinion Footnotes

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[93] *fn1 On a motion for summary judgment the court examines the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).


[94] *fn2 The first watch is from 10:00 p.m. to 6:00 a.m.


[95] *fn3 In order to establish a prima facie case of quid-pro-quo sexual harassment, Porter must show that Wheeler or DeSantis "explicitly or implicitly conditioned a job, a job benefit, or the absence of a job detriment, upon [her] acceptance of sexual conduct." Heyne v. Caruso, 69 F.3d 1475, 1478 (9th Cir. 1995) (internal citation and quotation marks omitted).


[96] *fn4 Of course, discrete acts still may be considered for purposes of placing non-discrete acts in the proper context. See Morgan, 536 U.S. at 113 ("Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim.") (emphasis added).


[97] *fn5 "No reasonable person could have believed that the single incident recounted above violated Title VII's standard." 532 U.S. at 271.


[98] *fn6 On remand, the CDC may cite the passage of time as evidence of a lack of causation, but it will be for the trier of fact to make the ultimate determination.