Knox v. Pol
Filed 1/22/14 Knox v. Pol CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SIX
JESUS KNOX,
Plaintiff and Appellant,
v.
J. POL, et al.,
Defendants and Respondents.
2d
Civil No. B244901
(Super.
Ct. No. CV120146A)
(
Jesus
Knox, a state prison inmate, sued three members of the prison staff for
violating prison administrative
regulations and for discriminating against him on the basis of sex, race
and mental disability in
violation of the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940 et seq.) He appeals from the
respondents' demurrer without leave to amend.
Facts
Appellant,
an African-American state prison inmate who states that he is mentally ill,
worked as a cook in the prison kitchen.
Respondent Pol is a Caucasian staff cook in the kitchen. Respondent Watains is also employed as a
staff cook in the kitchen. Respondent
Pechmann is their manager.
Appellant's
complaint alleges that, in December 2010, he was working in the kitchen, stirring
pudding with a large dipper, when Pol walked up to him, gestured as if he was
masturbating and said, "How does that feel?" A few days later, Watains told appellant that
he had heard about the incident. In
January 2011, Pol reported to a corrections officer that appellant felt
suicidal. Appellant denied the report
and alleges it was false. In February
2011, Pol yelled at appellant for filling rice pans incorrectly and then issued
a written warning to him. Appellant
complained he was being picked on because of his race. Respondent Pechmann investigated the
no misconduct by staff. Staff did,
however, receive additional training. In
March 2011, appellant was not allowed to work for one day because he showed up
for work with two black eyes. In June
2011, Pol and a corrections officer engaged in some horseplay for about an
hour, hiding from appellant a job classification review form that appellant
needed to have signed. They eventually
gave the form back to appellant who had it signed by another officer. The incident caused appellant to have an
anxiety attack. Later that same month
Pechmann approved Knox's request for a job transfer from the kitchen to the
bakery. As he was leaving the kitchen, appellant
heard Pechmann yell, "I better not hear anything else from you! Are we clear?"
Appellant
filed two separate, internal prison grievances against Pol, one relating to the
pudding incident and another concerning the rice pans. He exhausted his administrative remedies with
regard to the first grievance. Neither
grievance mentioned Watains or Pechmann.
In his response to respondents' demurrer, appellant claimed he did not
file a grievance against Pechmann because he felt threatened and intimidated by
Pechmann's statement, "I better not hear anything else from you!"
In May
2011, appellant filed a tort claim with the Victim Compensation and Government
Claims Board. The claim did not mention
Pechmann or allege that appellant had been injured by anyone working in
Pechmann's position.
Contentions
Respondents'
demurrer contended: 1. appellant cannot
state a claim for violation of FEHA because he is an inmate, not a employee; 2.
appellant had no private right of action under the prison administrative
regulations; 3. appellant did not exhaust his administrative remedies or comply
with the Tort Claims Act; 4. appellant's FEHA claims fail on their merits. The trial court concluded appellant had
sufficiently complied with the Tort Claims Act but failed to exhaust his
administrative remedies with regard to Pechmann and Watains. It further concluded appellant had no private
right of action for violation of the administrative regulations. Appellant's
FEHA claims failed to state a cause of action because appellant alleged
no facts supporting the conclusion that he was discriminated against on the
basis of a protected characteristic or activity. Appellant now contends each of these rulings
was erroneous.
Standard of Review
We
review de novo the order sustaining respondents' demurrer. (Beets
v. County of Los Angeles (2011) 200 Cal.App.4th 916, 922.) Like the trial court, we accept as true all
properly pleaded, material factual allegations in the complaint and other
relevant matters that are properly the subject of judicial notice. We liberally construe the factual allegations
to determine whether they state a cause of action. (
the demurrer without leave to amend, we must decide whether there is a
reasonable possibility appellant could cure the defects by amending the
complaint. It is appellant's burden to demonstrate
how an amendment could cure any such defects.
(Schifando v. City of
v. Cal. Physicians' Serv. (2000)
81 Cal.App.4th 39, 44.)
Discussion
FEHA Claims
Appellant's
first, second, third, fourth, eighth, ninth, tenth, twelfth and thirteenth
causes of action attempt to allege claims for violation of the FEHA. Respondents urge us to hold appellant cannot
state a cause of action under FEHA as a matter of law because he is a state
prison inmate on a work assignment, not an employee of the Department of
Corrections. We need not decide this
issue of first impression in California, however, because appellant's complaint fails for another
reason. It does not allege that he
suffered any adverse employment action and does not, therefore, allege a cause
of action under FEHA.
FEHA
prohibits discrimination "in terms, conditions or privileges of
employment." (§ 12940, subd.
(a).) This prohibition is often referred
to as the requirement "that the discriminatory action result in 'adverse
employment action.' (
Cal.4th 1028, [1042] . . . .)" (Horsford
v. Board of Trustees of
terms or conditions must be substantial and detrimental to the employee. (
trivial adverse actions or conduct by employers or fellow employees that, from
an objective perspective, are reasonably likely to do no more than anger or
upset an employee cannot properly be viewed as materially affecting the terms,
conditions, or privileges of employment and are not actionable, but adverse
treatment that is reasonably likely to impair a reasonable employee's job
performance or prospects for advancement or promotion falls within the
reach" of FEHA's antidiscrimination provisions. (Yanowitz
v. L'Oreal USA, Inc., supra, 36 Cal.4th at p. 1054.)
Appellant
alleges that Pol made one inappropriate gesture toward him, sent him home from
work early once because of black eyes, yelled at him for filling rice pans
incorrectly and hid a form from him. He
further alleges that, after these incidents took place, respondent Pechmann
approved appellant's request to be transferred to the bakery. There is no allegation that appellant lost
money or work hours, was subject to disciplinary action, or was transferred to
a less desirable work assignment as a result of Pol's behavior. Nor has appellant alleged that his prospects
for future job assignments have been negatively impacted by these isolated
incidents. The incidents described by
appellant do not rise to the level of adverse employment actions because they
are not sufficiently substantial or detrimental to him. Appellant's allegation that he was retaliated
against for reporting staff misconduct fails for the same reason: he does not allege that the retaliation
resulted in an adverse employment action being taken against him. (Id.
at pp. 1050-1052.)
In
addition, an adverse employment action does not violate FEHA unless
discrimination or disparate treatment based on a protected classification was a
substantial factor in the adverse action.
(Horsford, supra, 132
Cal.App.4th at p. 375.) The
plaintiff must allege facts which, if proven, would support the conclusion that
"the challenged employment actions were motivated in substantial part by
reasons of race [or another relevant characteristic]." (
facts. There is no allegation that
respondents used racially derogatory language, expressed discriminatory
opinions or otherwise behaved in a racially hostile manner.
Similarly,
appellant has alleged no facts supporting his allegation that respondents
discriminated against him based on his mental illness or disability. The only allegation related to this claim is
that Pol told a member of the custody staff that appellant seemed suicidal,
which appellant denied. There is no
allegation the report was motivated by discriminatory intent or that appellant
suffered as a consequence of it. Again,
this isolated incident does not constitute an adverse employment action and
cannot, therefore, form the basis for a cause of action under FEHA.
Finally,
appellant alleges the comment Pol made while appellant was stirring pudding
constitutes sexual harassment. Although
a sexual harassment claim may be based on a single incident, the incident
"must be severe in the extreme and generally must include either physical
violence or the threat thereof." (
101 Cal.App.4th 142, 151.) Appellant
does not allege that Pol was physically violent toward him or that Pol
threatened physical violence. The
gesture he alleges, while crude, is not sufficient by itself to constitute
sexual harassment.
Violation of Administrative Regulations
Appellant
's first, second, fourth, fifth, sixth and seventh causes of action allege that
respondents violated various administrative regulations relating to state
prisons. There is, however, no private
right of action to enforce these regulations.
"Only the Legislature, through enactment of a statute, can create a
private right of action to directly enforce an administrate regulation
. . . ." (
(2012) 203 Cal.App.4th 1112, 1132.)
No such statute exists with respect to prison regulations. As a matter of law, appellant's allegations
that prison staff violated administrative regulations do not state a cause of
action. (See, e.g., In re Johnson (2009) 176 Cal.App.4th 209, 297 ["Generally,
prison discipline falls within the expected parameters of the sentence imposed
by a court of law and does not implicate the due process clause or create the
right to judicial review."].)
Conclusion
The
trial court correctly concluded that appellant's complaint failed to allege
facts sufficient to state a cause of action, either for violation of FEHA or
for violation of administrative regulations.
Appellant has not demonstrated the complaint could be amended to cure
those defects. Consequently, we conclude
the trial court correctly sustained respondents' demurrer without leave to
amend.
The
judgment (order of dismissal) is affirmed.
NOT
TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT,
P.J.
PERREN,
J.
>
Dodie Harman, Judge
Superior Court County of San Luis Obispo
______________________________
Jesus
Knox, in pro per, Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Thoma Patterson,
Supervising Deputy Attorney General, Neah Huynh, Deputy Attorney General, for
Plaintiff and Respondent.
name="_ftn1" title="">[1] Although no final
judgment was entered in the court below, we construe the order sustaining the
demurrer without leave to amend as an appealable order of dismissal. (Sisemore
v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.)
