Anderson v. State of California

Filed 10/17/07 Anderson v. State of California CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant Yolanda Anderson (appellant) appeals from a summary judgment granted in favor of the State of California and certain of its employees (collectively respondents) claiming that the trial court improperly refused to consider certain evidence she presented in opposition to the motion, and that this evidence, when viewed together with that which the court did consider, created triable issues of material fact as to her employment-related claims against respondents. No other basis for granting summary judgment or summary adjudication has been briefed or argued by respondents on appeal. We agree with appellants contentions on appeal, and conclude that she has demonstrated respondents were not entitled to summary judgment on any of her causes of action. Accordingly, we reverse, and remand for further proceedings.

I. Facts and Procedural Background

Appellant, an African American woman, began working as a correctional officer for the California Department of Corrections in November 1988. She was promoted to sergeant in September 1993.

Appellant started her corrections career at Corcoran State Prison, but in February 1990, she requested and received a transfer to San Quentin State Prison. On March 8, 2001, appellant filed multiple complaints with the California Department of Fair Employment and Housing (DFEH), which were identical except for the name of the entity or person complained against. Each complaint indicated that from 1992 to the present, appellant had been harassed; denied employment, promotion and transfer; and denied equal treatment, benefit of the job including wages at times on account of her sex, race or color, and medical condition. The narrative portion of the complaint forms asserted that [t]he incidences of harassment and discrimination are too numerous to mention. Most incidences involve denial of basic rights and entitlement to benefits of employment which are provided to others but, denied to [appellant]. Numerous grievances have had to be filed to correct inappropriate harassing and discriminatory tactics utilized to enforce [sic] these basic rights and entitlements. The rules, policies and procedures that employees are expected to obey and follow are applied unequally. It is undisputed that none of appellants DFEH claims included a claim that respondents had retaliated against her. Appellant received right to sue letters from the DFEH on March 12, 2001.

Appellant filed her initial complaint in this action on March 11, 2002. The operative pleading for purposes of this appeal, however, is appellants second amended complaint, filed April 24, 2003. This complaint alleges seven causes of action under the Fair Employment and Housing Act (FEHA) (Gov. Code,  12900 et seq.). The first, second, and third causes of action allege that respondents discriminated against appellant on the basis of gender, race, and disability, respectively. The fourth, fifth, and sixth allege that respondents harassed appellant on each of the same bases. The seventh alleges that respondents retaliated against appellant for complaining about their discrimination and harassment of her.

During the pendency of this litigation, on June 27, 2003, appellant injured her knee and required surgery as a result. She stopped working at San Quentin on that date. In June 2004, her physician indicated that she could not return to work at San Quentin for psychological reasons, and as of the date of her opposition to the summary judgment motion, she had not done so.

Appellant contends that she began experiencing various forms of employment discrimination, harassment, and retaliation about two years after transferring to San Quentin.[1] For purposes of the action giving rise to this appeal, however, appellant relies only on events beginning in May 1998, and continuing through March 2001.

On July 7, 2005, respondents filed a motion for summary judgment. The grounds for the motion were: (1) that appellant could not establish a prima facie case as to any of her causes of action for discrimination, harassment, and retaliation; (2) that respondent California Department of Corrections could not be held liable for unreported, isolated acts of harassment by appellants coworkers; (3) that appellant had failed to exhaust her administrative remedies as to her cause of action for retaliation; (4) that respondent California Department of Corrections had legitimate business reasons for all of the employment actions it had taken that were alleged in appellants complaint; (5) that appellant was barred by collateral and judicial estoppel from relitigating claims previously litigated in an administrative forum; (6) that all alleged incidents occurring before March 8, 2000, or after March 8, 2001, were barred by the statute of limitations; and (7) that the individual respondents (various supervisory employees at San Quentin) were entitled to discretionary immunity under Government Code section 820.2.

The facts alleged as the basis for appellants claims in this case consist of the incidents listed below, in chronological order.[2] The trial courts ruling did not specify which incidents were relevant to appellants various causes of action, so we have listed them all together for convenience. For the same reason, we have not distinguished between individual respondents.

1.                  The shoulder injury incident: In December 1997, appellant experienced a work-related shoulder injury. Subsequently, appellant was accused of being absent without leave even though she had properly reported the injury; respondents issued a letter reprimanding appellant for failing to attend training from which she was excused due to her injury; and respondents denied appellant a pay increase in June 1998 due to her failure to complete the training from which she was excused. Appellant successfully grieved the denial of her pay increase, but did not receive the funds until November 1999, almost a year later.
In support of the summary judgment motion, respondents produced evidence that appellant had not informed her superior of her medical exemption from the training until after she filed her grievance. Appellants opposition, however, noted that she twice entered into written, signed light duty agreements with her employer, copies of which were attached to her papers opposing the summary judgment motion. Moreover, respondents provided no explanation for appellants having been accused of being absent without leave even though she reported the injury. Accordingly, appellant raised a triable issue of fact as to whether respondents had a legitimate nondiscriminatory reason for the actions taken against her in the wake of her injury.

2.                  The evaluation grievance: In June 1998, appellant received a performance evaluation which contained comments regarding facts outside the preceding 12-month period. It is undisputed that respondents personnel policies do not permit performance evaluations to be based on facts outside the evaluation period. In August 1998, appellant filed a grievance regarding this evaluation. Respondents denied that this evaluation constituted a material adverse action or was causally linked to discrimination, harassment, or retaliation, but did not dispute appellants description of its contents, or offer any legitimate reason for the alleged impropriety in the evaluation.

3.                  The schedule change incident: In August 1998, appellant requested a work schedule change for herself and two of her subordinates. Appellant received all necessary approvals for the requested change. Although such changes are routinely made for white male officers without problems, the change was not implemented for appellant until two weeks later, and appellant had to appeal to an African American male associate warden in order to implement the change for her subordinates. Respondents asserted that the reason for their declining to change the schedule of one of the subordinates was that the subordinate did not want the schedule change, but appellant disputed that fact, explaining that the other subordinate, who did want the change, had more seniority. Respondents offered no explanation for the delay in implementing the change for appellant. Thus, appellant presented sufficient evidence to raise a triable issue of fact as to whether the reasons given to appellant for the delay, and for the failure to change her subordinates schedules, were pretextual.

4.                  The scissors incident: In August 1998, a corrections officer lost a pair of scissors during the shift just prior to the one supervised by appellant. Respondents accused appellant of being responsible for the loss, and in February 1999, they imposed a six-month reduction in her salary as discipline. Appellant grieved the salary reduction, and in May 1999, her discipline for the scissors incident was reduced to an informal reprimand, and the lost pay was refunded. Even though appellant identified the officer who actually lost the scissors, no disciplinary action was taken either against that officer or against the white officer who supervised that officers shift. Respondents did not offer any legitimate nondiscriminatory reason for the disparity in discipline.

5.                  The sick leave approval incident: In April 1999, respondents required appellant to provide medical verification for a sick leave request, even though appellant was not required by applicable policies to supply such verification. Appellants white supervisor refused to sign her sick leave form even though she confirmed with the personnel office that she was not required to provide verification, and appellant was forced to appeal to an African American associate warden to obtain the necessary signature. Appellant was accused of dishonesty in connection with this incident, and procedures for docking her wages were initiated. Respondents explained this incident as a mistake, but did not provide any other justification.

6.                  The home entry incident: On October 14, 1999, someone reported possibly hearing a smoke alarm at appellants home on the prison grounds. When the San Quentin fire crew arrived at the home, the alarm was not sounding. There were no visible signs of fire or smoke, although there was a smell of smoke, and an unlit, melted candle was visible on a windowsill. There is a dispute of fact regarding whether the fire crew knocked or called out to see whether appellant was home when they first arrived at the scene. It is not disputed that the fire crew, including two white male San Quentin officers, obtained a pass key, entered appellants home some five or ten minutes later, and walked into her bedroom. To her embarrassment, they found her in bed with a civilian visitor. Appellant submitted deposition testimony from a male officer stating that when a smoke alarm went off in his home, prison officials did not enter it.

7.                  The scheduling incident: On March 30, 2000, upon appellants return from a stress-related medical leave, respondents assigned her to a schedule that had undesirable days off, when she was entitled to a more favorable schedule. Respondents explained that the assignment was made pursuant to the normal procedure for employees returning for medical leave, and that it was not permanent. Appellant disputed this explanation.

8.                  The medical suspension incident: In late March 2000, in connection with appellants return from the same stress-related medical leave, respondents suggested to appellants treating physician that she change appellants return-to-work clearance so as to clear her only for part-time work. In fact, as respondents were aware, no part-time assignments were available. Respondents then suspended appellant from work from March 31, 2000, through April 25, 2000, because she did not have a medical clearance for full-time work. Respondents explained that their policy requires employees returning to work from stress-related medical leaves to obtain a medical clearance for full-time work without limitations, but did not dispute appellants evidence that they had suggested to her doctor that she be given only a limited return-to-work clearance. In addition, appellant stated in her opposition papers that white male officers were allowed to return to work without complying with the policy to require an unrestricted medical clearance. Respondents reply did not dispute this allegation. Appellant grieved this medical suspension, and respondents settled the grievance by stipulating that she was entitled to 11 days pay.

9.                  The Dwald incident: In October 2000, respondents formally investigated appellant for misconduct based on an unverified report from a white female coworker, Sergeant Dwald, who accused appellant of engaging in a verbal confrontation with another coworker, and of using derogatory language to Dwald after Dwald approached her to discuss the matter. According to appellant, under respondents policies and procedures, an investigation of this type is only supposed to be triggered when a complaint has been verified in some way. Appellant developed a stress headache due to the improper investigation, and lost wages and benefits as a result. Respondents disputed the actionability of this incident, but not the facts, and did not offer any reason for their actions.

10.             The Owens incident: In November 2000, respondents improperly reduced the discipline administered to one of appellants coworkers, Diane Owens, who had been insubordinate and rude to appellant. Specifically, appellant requested that Owens be given a letter of reprimand, and her supervisors approved this level of discipline, but the warden reduced it to a letter of instruction, which is an informal, nondisciplinary reprimand issued for such minor infractions as being five minutes late for work. Respondents motion for summary judgment noted that Owens had no prior disciplinary record, and contended that the reduction in discipline was therefore appropriate. Appellant disputed this, noting that she was unaware of any other instance in which an individual refusing a direct order and using profanity to a supervisor was issued only a [letter of instruction]. Respondents did not dispute this assertion.

11.             The eviction notice incident: In February 2001, respondents threatened to evict appellant from her employer-owned residence on the prison grounds for nonpayment of rent. At this time, she was on medical leave due to work-related stress, and was not receiving income due to respondents denial of her workers compensation claim. Appellant did not introduce any evidence indicating that other employees who failed to pay the rent for their employer-owned housing were treated differently.

12.             The delayed return to work incident: In September 2001, following appellants clearance to return from a workers compensation leave, respondents delayed her return to duty for three days, resulting in lost pay. Appellant grieved this incident, and at the third level of the grievance procedure, respondents agreed to pay her the full amount of the unpaid compensation. Respondents summary judgment motion offered no legitimate nondiscriminatory reason for the delay in appellants return to work.

13.             The Pimentel incidents: According to appellant, on October 6, 2001, a white male officer, Lieutenant Pimentel, directed appellant to write up another officer for being less than alert. Appellant declined to do so, because she had not observed the officer to be less than alert, and believed the write-up would be unfounded. Pimentel then threatened to write appellant up; induced her to meet with him without the union representation she requested; and told her she should quit her job. Starting on that date, and continuing through February 2002, appellant had repeated conflicts with Pimentel. Appellant filed grievances as a result, and requested that Pimentel be disciplined for harassing her. In February 2002, Pimentel gave appellant a performance evaluation which improperly characterized her as needing improvement in areas as to which she had never been previously disciplined or warned, which was a violation of established procedure. Pimentel refused to obey an order from his supervisor to correct the evaluation. Respondents contended that appellant had failed to exhaust her administrative remedies as to these incidents, but did not dispute the facts.

14.             The hospital incident: In May 2003, respondents disciplined appellant as a result of complaints from White nurses at Novato Community Hospital, where appellant and her coworkers were guarding an inmate who was being treated there. The nurses alleged that there had been a security breach during earlier shifts, but with respect to appellants shift, they only alleged inappropriate behavior such as talking loudly and flirting. Nonetheless, appellant was the only officer investigated as a result of the nurses complaints. The officer assigned to investigate the incident, who was African American, initially cleared appellant of any misconduct. The officers report was returned to him for revision six times, which had never occurred before in his experience. Only the seventh version of the report, which omitted some of the statements obtained from the witnesses, substantiated the charges. Appellant was given a letter of reprimand for neglect of duty and unprofessional conduct, which was reduced to a letter of instruction after a civil service hearing. Respondents offered no explanation as to why appellant was the only officer subjected to formal discipline as a result of the nurses complaints.

On January 5, 2006, the same day as the hearing, the trial court granted respondents motion for summary judgment, adopting its tentative ruling as the order of the court. The court declined to consider any of respondents alleged conduct occurring prior to March 8, 2000, one year before appellant filed her FEHA complaint on March 8, 2001, on the ground that all earlier incidents (the time-barred conduct) fell outside the applicable statute of limitations. Similarly, the court declined to consider any of respondents alleged conduct occurring after appellant filed her FEHA complaint, on the ground that as to that conduct (the nonexhausted conduct), appellant had not exhausted her administrative remedies. In addition, the court did not consider the time-barred or nonexhausted conduct as evidence of respondents discriminatory or retaliatory intent.

Thus, in ruling on the motion for summary judgment, the court considered only actions alleged to have occurred during a single year, between March 8, 2000, and March 8, 2001. The incidents occurring during this time frame were limited to the scheduling incident, the medical suspension incident, the Dwald and Owens incidents, and the eviction notice incident. As to these events, the court held that they did not establish a prima facie case of employment discrimination, because appellant had not presented evidence demonstrating that she has suffered an adverse employment action on account of [respondents] actions; i.e., a materially adverse change in the terms or conditions of [appellants] employment. [Citation.] (Original capitalization omitted.) Similarly, the court held that the few isolated incidents relied upon by [appellant] to support her claim of harassment are: infrequent, trivial and/or ambiguous; and they are not sufficiently severe or pervasive to create the required objectively hostile or abusive work environment. [Citations.] (Original capitalization omitted.)

Finally, as to appellants cause of action for retaliation, the court held that the entire claim was barred by her failure to exhaust her administrative remedies by filing a FEHA claim specifically alleging retaliation. As an alternative basis for granting summary judgment on this cause of action, the trial court ruled that appellant had not suffered an adverse employment action, inasmuch as the all[e]ged retaliatory acts . . . [were] typical personnel and administrative disagreements and/or mistakes that routinely occur in the workplace and did not result in substantial and material changes in [appellants] conditions of employment. (Original capitalization omitted.) Again, in making this assessment, the court considered only the conduct that was neither time-barred nor nonexhausted.

Judgment in favor of respondents was entered, in accordance with the order granting summary judgment, on January 30, 2006. Appellant filed a motion for new trial, which was denied on April 10, 2006. Appellant filed a timely notice of appeal on April 11, 2006.

II. Discussion

A. Standard of Review on Appeal from Summary Judgment

Because respondents were granted summary judgment, we review the record de novo. (Birschtein, supra, 92 Cal.App.4th at p. 999.) As the moving parties, respondents bear[] the burden of persuasion that there is no triable issue of material fact and that [they were] entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.)

A motion for summary judgment shall be granted when all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. [Citation.] A moving defendant is entitled to judgment as a matter of law when the defendant shows without rebuttal that one or more elements of the plaintiffs case cannot be established or there is a complete defense to that cause of action. [Citations.]

On appeal after a summary judgment has been granted, we review de novo the trial courts decision to grant summary judgment and are not bound by the trial courts stated reasons.[[3]] [Citations.] In reviewing the summary judgment, we apply the same three-step analysis used by the trial court: we (1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponents claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue. [Citation.] Like the trial court, we view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom. [Citation.] (Hinesley v. Oakshade Town Center, supra, 135 Cal.App.4th at p. 294.)

B. Scope of Appellants Actionable Claims

As already noted, the trial courts decision took into account only the alleged incidents of discrimination, harassment, and retaliation against appellant occurring during the year immediately preceding the filing of her DFEH complaint. Accordingly, we begin our analysis of the issues on appeal by examining whether the trial court was correct in deciding that the incidents alleged to have occurred outside that time frame should be excluded from consideration in ruling on the summary judgment motion.

1. Continuing Violation Doctrine

When a series of employer actions constitutes a continuing violation of FEHA, conduct that would otherwise be outside the statute of limitations can form part of the basis of an employees causes of action under FEHA. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 802, 823-824 (Richards).) In Richards, the California Supreme Court held that for purposes of a claim of disability-based employment discrimination under FEHA, an employers persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment targeting a disabled employee, is a continuing violation if the employers unlawful actions are (1) sufficiently similar in kindrecognizing . . . that similar kinds of unlawful employer conduct, such as acts of harassment . . . may take a number of different forms [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. [Citation.] (Id. at p. 823.) The court clarified that for this purpose,  permanence in the context of . . . ongoing disability harassment, should properly be understood to mean . . . that an employers statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to . . . end harassment will be futile. (Ibid.)[4]

Richards focused on disability-related discrimination and harassment. Shortly after Richards was decided, however, this court held that the analysis of the continuing violation doctrine in Richards applied with equal force in a case alleging sex-based discrimination and harassment. (Birschtein, supra, 92 Cal.App.4th at p. 1004-1005.) As this court noted in Birschtein, the foundation of the [Richards] courts rationale supporting application of the continuing violation doctrine in FEHA discrimination litigation is not so much [disability] accommodation itself as a process of conciliation, which applies just as much to FEHA-based claims of race and sex discrimination as it does to claims of failure to accommodate a disability. (Id. at p. 1004, italics in original; see also Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1042 (Cucuzza) [applying Richards to claim that plaintiff was denied employment opportunities based on sex discrimination].) Under the reasoning of Birschtein, it is clear that the Richards test also applies to discrimination and harassment based on race, and respondents do not argue otherwise.

Moreover, in Birschtein, this court reversed a summary judgment in favor of the plaintiffs employer, concluding that the plaintiff had made a sufficient showing of continuity in her coworkers acts of harassment to raise a triable issue of fact as to whether she had established a continuing violation. (Birschtein, supra, 92 Cal.App.4th at pp. 1004-1005.) As this result reflects, the issue of continuity of conduct, for continuing violation purposes, is sufficiently factual in nature that it may not always be susceptible to resolution at the summary judgment stage. (See Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1059-1060 (Yanowitz) [reversing summary judgment where reasonable trier of fact could find that employers adverse actions against employee were sufficiently similar in kind and occurred with sufficient frequency to constitute continuous course of conduct].)

In the present case, the trial court rejected appellants contention that the continuing violation doctrine required it to consider otherwise time-barred incidents in ruling on the summary judgment motion. The incidents thus excluded from consideration were the shoulder injury incident; the evaluation grievance; the schedule change incident; the scissors incident; the sick leave approval incident; and the home entry incident. The trial court characterized these events as a collection of isolated employment decisions that are not similarly [sic] related and frequent to constitute a course of conduct. [Citations.] (Original capitalization omitted.)

We cannot agree with the trial courts assessment of the evidence. For example, both the shoulder injury incident and the scissors incident, like the Dwald incident, involved accusations of misconduct against appellant that she contends were not handled in compliance with respondents personnel policies and procedures. Similarly, the shoulder injury incident, like the medical suspension incident, involved a reduction in appellants income following appellants return to work following a medical leave, and in both instances appellant successfully grieved the pay reduction. Both the schedule change incident and the sick leave approval incident, like the scheduling incident and the medical suspension incident, involved allegations by appellant that routine personnel procedures were implemented differently as to her than as to other employees not of her race and/or gender. In addition, appellants allegations involved repeated conduct by a small number of San Quentin supervisory and administrative personnel.[5]

Given these similarities, a reasonable trier of fact could find that at least some of the incidents occurring prior to March 8, 2000, taken together with those falling within the limitations period, formed part of a continuing course of conduct. Accordingly, the trial court erred in excluding them from consideration when assessing whether appellant had presented sufficient evidence in support of her substantive FEHA claims to survive respondents motion for summary judgment.

The trial court here also erred in another respect on the continuing violation question. Under Richards, even if adverse employer actions occurring outside the statute of limitations are not separately actionable, they are still admissible in evidence, as context and background, and should be taken into account in determining whether actions that occurred within the limitations period were discriminatory. (Richards, supra, 26 Cal.4th at p. 812, citing United Air Lines, Inc. v. Evans (1977) 431 U.S. 553, 558; see also National Railroad Passenger Corporation v. Morgan (2002) 536 U.S. 101, 116-117 [under federal employment discrimination law, in determining whether an actionable hostile work environment claim exists, trial court must consider as evidence acts falling outside limitations period].) By declining to consider the incidents occurring outside the one-year window, even as evidence casting light on the significance of those occurring within the window, the trial court failed to take into account all of the evidence in determining whether appellant had raised a triable issue of fact regarding whether respondents had discriminated against, harassed, or retaliated against her.

2. Exhaustion of Administrative Remedies

In order to bring a civil action under FEHA, the plaintiff must exhaust his or her administrative remedies by filing a written charge with the DFEH within one year of the alleged employment discrimination and obtaining a right to sue letter. (Gov. Code,  12960; Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613 (Okoli).) The scope of the written DFEH charge defines the permissible scope of the subsequent civil complaint (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1121-1123), and allegations in the civil complaint which fall outside the scope of the administrative charge are barred for failure to exhaust. (Rodriguez v. Airborne Express (9th Cir. 2001) 265 F.3d 890, 897.)

However, FEHA requires that its procedural requirements be construed liberally for the accomplishment of [its statutory] purposes. (Gov. Code,  12993, subd. (a).) As a result, California courts, as well as numerous federal courts, have endorsed the like or reasonably related standard for exhaustion of administrative remedies. (See, e.g., Okoli, supra, 36 Cal.App.4th at p. 1614; Sandhu v. Lockheed Missiles & Space Co. (1994) 26 Cal.App.4th 846, 858-859 (Sandhu); Oubichon v. North American Rockwell Corporation (9th Cir. 1973) 482 F.2d 569, 571.) Under this standard, the allegations in a civil action are within the scope of the administrative charges if the civil allegations fall within the scope of the administrative investigation that could reasonably be expected to grow out of the original charges. (Sandhu, supra, 26 Cal.App.4th at pp. 858-859.) Thus, where an administrative investigation would likely have encompassed the claim alleged in the civil complaint, there is no exhaustion of remedies bar. (See Okoli, supra, 36 Cal.App.4th at p. 1616; Baker v. Childrens Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1065 (Baker).)

In the present case, the trial court held that appellant had not exhausted her FEHA remedies as to the allegedly discriminatory and harassing conduct occurring after appellant filed her FEHA complaint.[6] The court reasoned that this conduct did not relate back to the filing of the FEHA complaint because it was neither similar to, nor reasonably related to, [appellants] timely FEHA claims, and these acts would not likely be uncovered in the course of a DFEH investigation. (Some original capitalization omitted.)

In its ruling on this point, the trial court relied on Okoli, supra, 36 Cal.App.4th 1607. In our view, however, Okoli is distinguishable on its facts. In Okoli, the plaintiffs DFEH complaint alleged one specific instance of discrimination, in the form of denial of a promotion, and two specific instances of derogatory comments, both committed by the same supervisor. (See id. at pp. 1609-1610.) The plaintiffs complaint in the ensuing lawsuit also included an additional claim, not mentioned in his DFEH complaint, that the plaintiff had been subjected to other adverse employment actions by a different supervisor in retaliation against him for filing the original DFEH complaint. Given the specificity of the plaintiffs DFEH complaint in Okoli, it is not surprising that the court found that the plaintiff had not exhausted his administrative remedies with regard to the retaliation claim. (See id. at p. 1617.)

In contrast to Okoli, Division Five of this court decided Baker, supra, 209 Cal.App.3d 1057, in which the plaintiffs DFEH complaint alleged that as the result of race discrimination, he was denied the opportunity to work additional hours during a particular summer. He then filed a civil complaint alleging that he had been subjected to harassment, biased evaluations, and denial of pay raises and promotions, both due to his race and in retaliation for pursuing internal grievances regarding alleged race discrimination.

The trial court in Baker granted summary judgment for the employer on the basis of failure to exhaust administrative remedies. This court reversed, holding that the plaintiffs allegations of harassment and differential treatment encompass the allegations of discrimination in his DFEH complaint, and that it is reasonable that an investigation of the allegations in the original DFEH complaint would lead to the investigation of subsequent discriminatory acts undertaken by [the employer] in retaliation for [the plaintiffs] filing an internal grievance. (Baker, supra, 209 Cal.App.3d at p. 1065; see also Sandhu, supra, 26 Cal.App.4th at pp. 849, 858-859 [East Indian employee who filed DFEH complaint alleging discrimination on basis of race (Asian) was not precluded by failure to exhaust administrative remedies from pursuing civil complaint, based on same facts, alleging discrimination on basis of national origin].)

The present case is closer on its facts to Baker than to Okoli. Indeed, if anything, this case presents a stronger argument in favor of exhaustion. Appellants DFEH complaints were very broadly worded, alleging incidences of harassment and discrimination . . . too numerous to mention, and naming nine different supervisory and administrative personnel whom she alleged were responsible for the asserted FEHA violations. Thus, any DFEH investigation engendered by appellants complaint would necessarily have been far broader than the one triggered by the very narrow and specific complaint involved in Okoli, supra, 36 Cal.App.4th 1607.

Moreover, of the incidents that appellant relied on which occurred after the filing of her DFEH complaint, at least two were like or reasonably related to the incidents occurring before that date.[7] Specifically, (1) the delayed return to work incident was similar to the medical suspension incident, and arose from the actions of two of the same people named in the DFEH complaint (Lutrell and McKay), and (2) the hospital incident was similar to the scissors incident, and also involved a person named in the DFEH complaint (Rossetti). Accordingly, the trial court erred as a matter of law in excluding at least these incidents from consideration on the basis of the failure to exhaust administrative remedies.

C. Employment Discrimination Causes of Action

In an action such as this one, alleging discriminatory treatment in the terms and conditions of employment, the plaintiff must make her prima facia case by proving that (1) she was a member of a protected class; (2) she was qualified for the position, transfer, promotion, or other job benefits she sought; (3) she suffered an adverse employment action, such as termination, demotion, or denial of a promotion; and (4) some other circumstance that suggests a discriminatory motive. (Cucuzza, supra, 104 Cal.App.4th at p. 1038, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) The employer may obtain summary judgment either by demonstrating that the plaintiff cannot prove one of these elements, or by showing that its adverse employment actions against the plaintiff were based on legitimate nondiscriminatory factors. (Cucuzza, supra, 104 Cal.App.4th at p. 1038.)

In the present case, the trial court concluded that the incidents relied on by appellant did not amount to a sufficiently material adverse employment action to constitute actionable discrimination. Thus, the court granted respondents motion for summary judgment as to appellants employment discrimination causes of action based only on a finding that appellant had not established the third element of her prima facie case. In reaching this conclusion, however, the court considered only those incidents occurring within one year prior to the filing of appellants FEHA claim, and not any earlier or later incidents. As already noted, this was error.

Moreover, the trial court appears to have assessed each individual incident separately to determine whether it was material. The case relied on by the trial court in so doing, Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507 (Thomas), was decided before Yanowitz, supra, 36 Cal.4th 1028, which the trial court did not cite. In Yanowitz, the Supreme Court made clear that in determining whether an employee has suffered any material adverse employment action, the trier of fact must consider the employers overall course of conduct as a whole, because an adverse employment action may consist not of one swift blow, but rather of a series of subtle, yet damaging, injuries. [Citations.] (Id. at p. 1055.) The Thomas court did not have the benefit of the Supreme Courts analysis in Yanowitz, and in our view, it is no longer persuasive authority regarding the approach to be followed in determining whether a series of adverse employment actions is sufficiently material to rise to the level of employment discrimination.

In the present case, several of respondents alleged discriminatory actions (i.e., the shoulder injury incident, the scissors incident, the medical suspension incident, and the delayed return to work incident) resulted in appellant being required to file grievances in order to obtain wages ultimately found to have been wrongfully withheld from her. Under Yanowitz, the improper withholding of wages owed to an employee, especially on repeated occasions, is a sufficiently material adverse action to warrant the conclusion that the conduct went beyond routine workplace disappointments, and thus raises a triable issue of fact as to actionable adverse employment action. Accordingly, the trial court erred in concluding that appellant had failed to raise a triable issue of fact on this element of her prima facie case.

Because the trial court focused exclusively on the adverse employment action element of appellants prima facie case, it did not reach the issue whether there was a triable issue of fact concerning the remaining elements, or concerning any asserted nondiscriminatory justifications for respondents actions. Appellants membership in the relevant protected classes, and her qualifications for her position, were not disputed for the purpose of the summary judgment motion.[8]

On the issue of discriminatory intent, appellants declaration detailed several instances in which white and/or male officers were treated differently than she was.[9] This evidence, coupled with the sheer number of incidents, could justify a reasonable trier of fact in inferring that appellant was being singled out for adverse treatment on the basis of race, gender, or disability. Accordingly, appellants evidence of discriminatory intent, while not overwhelming, was sufficient to survive summary judgment, given the inherently factual nature of this issue. (See Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 77 [  [D]eterminations regarding motivation and intent depend on complicated inferences from the evidence and are therefore peculiarly within the province of the factfinder.  [Citation.]]; Chuang v. University of California Davis, Bd. of Trustees (9th Cir. 2000) 225 F.3d 1115, 1124 [As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employers motion for summary judgment. This is because the ultimate question is one that can only be resolved through a searching inquiryone that is most appropriately conducted by a factfinder, upon a full record. [Citation.]].)

As for the defense of legitimate nondiscriminatory purpose, we note that respondent failed to offer any reason or explanation for several of the actions that appellant relied on. Moreover, appellants successful pursuit of several grievances would entitle a reasonable trier of fact to infer that the actions grieved were not justified by legitimate purposes. (See Fonseca v. Sysco Food Services of Arizona, Inc. (9th Cir. 2004) 374 F.3d 840, 847-848 [reversing summary judgment in favor of employer in disparate treatment discrimination case on basis that repeatedly forcing non-white employee to file grievances in order to obtain benefits to which employee was entitled, where white employees obtained such benefits readily, constituted adverse employment action and supported inference of discrimination].) Thus, we cannot conclude on this record that appellant failed to show a triable issue of fact as to her ability to rebut the defense of legitimate nondiscriminatory purpose. Accordingly, the trial court erred in granting respondents motion for summary judgment as to these causes of action.

D. Workplace Harassment Causes of Action

Harassment on the basis of race, gender, or medical condition is unlawful under FEHA. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129 (Aguilar).) In Aguilar, the Supreme Court noted in dicta[10] that  [f]or . . . harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victims] employment and create an abusive working environment. [Citation.] [Citation.] (Id. at p. 130.) In other words, harassment  cannot be occasional, isolated, sporadic, or trivial ; instead,  the plaintiff must show a concerted pattern of harassment of a repeated, routine, or a generalized nature. [Citation.] [Citation.] (Id. at p. 131.) Thus, in order to establish a claim for workplace harassment,  [t]he plaintiff must prove that the defendants conduct would have interfered with a reasonable employees work performance and would have seriously affected the psychological well-being of a reasonable employee and that [the plaintiff] was actually offended. [Citation.] (Id. at pp. 130-131.)

In the present case, as already noted, in determining whether appellant had established the existence of a triable issue of material fact as to whether this standard was met, the trial court excluded from its consideration all but one years worth of the events appellant relied on as showing harassment, and then dismissed the remainder as being a few isolated incidents that were infrequent, trivial and/or ambiguous, and thus not sufficiently severe or pervasive to meet the standard articulated in Aguilar, supra, 21 Cal.4th at pp. 130-131. (Original capitalization omitted.) Under Richards, supra, 26 Cal.4th 798, and Yanowitz, supra, 36 Cal.4th 1028, this approach was legally incorrect.

Appellant presented evidence sufficient to create a triable issue of fact as to whether she was improperly and/or selectively investigated for misconduct at least three times (in the shoulder injury, hospital, and Dwald incidents); whether workplace procedures were applied differently to her than to other employees on several other occasions (the schedule change, sick leave approval, scheduling, medical suspension, and hospital incidents); whether her authority was undermined by an inadequate disciplinary response to insubordination directed at her (the Owens incident); and whether her private residence was entered without notice or just cause (the home entry incident). When all of these incidents are taken together, a reasonable trier of fact could conclude that appellant had shown a concerted pattern of harassment of a repeated nature. (Cf. Yanowitz, supra, 36 Cal.4th at pp. 1060-1061 [series of actions that threaten[ed] to derail an employees career were objectively adverse, and precluded summary judgment for employer in retaliatory harassment case].) Accordingly, the trial court erred in granting summary judgment as to appellants causes of action for workplace harassment on the basis of failure to establish a triable issue of fact regarding the existence of an actionable level of harassment.

A cause of action for workplace harassment under FEHA also requires the plaintiff to prove that the harassment was based on the plaintiffs membership in a protected class, as opposed (for example) to mere personal animosity. On this point, as with the discriminatory intent element of appellants employment discrimination causes of action, appellants evidence was not strong, but was sufficient to survive summary judgment. Accordingly, the trial court erred in granting respondents motion for summary judgment as to these causes of action.

E. Retaliation Cause of Action

To establish a prima facie case of retaliation, the plaintiff must show (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) [there exists] a causal link between the protected activity and the employers action. [Citations.] Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. [Citation.] If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation drops out of the picture, and the burden shifts back to the employee to prove intentional retaliation. [Citation.] (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.)

As already noted, the trial court granted summary judgment as to the retaliation cause of action primarily on the basis of failure to exhaust administrative remedies, without reaching the question whether appellant had raised a triable issue of fact on the question of retaliatory intent. The trial court opined that the alleged acts of retaliation were not similar to, reasonably related, nor would these allegedly retaliatory acts likely have been discovered during a DFEH investigation of [appellants] complaint. [Citation.] (Original capitalization omitted.)

Our earlier analysis of the trial courts error in applying the exhaustion doctrine to bar consideration of facts occurring after the filing of her DFEH complaint applies with equal force to her retaliation cause of action. Our conclusion is reinforced by the fact that appellants differences with her superiors at San Quentin had already given rise to earlier administrative complaints, and even litigation, before her current DFEH complaint was filed. Thus, unlike the plaintiff in Okoli, supra, 36 Cal.App.4th 1607, appellant had engaged in protected activities that could potentially have given rise to retaliatory action before she filed the current DFEH complaint. This makes it far more likely that a DFEH investigation of that complaint would have included in its scope the possibility that respondents adverse treatment of appellant was motivated by retaliation.

The trial court also found that the evidence advanced by appellant in support of her retaliation cause of action did not establish a triable issue of fact as to the existence of a material adverse employment action. For the same reasons given above with regard to appellants employment discrimination causes of action, this conclusion was in error.

In order for a plaintiff to survive summary judgment on a claim for retaliation, the plaintiff must show a causal relationship between the plaintiffs protected activity and the adverse treatment the plaintiff received. (Cf. Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1258-1259 [required relationship not shown where employees reporting activity occurred four to five years before adverse employment action].) This relationship may, however, be shown by circumstantial rather than direct evidence, such as the employers knowledge of the protected activity (undisputed in this case), together with the proximity in time between the protected activity and the termination. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 478; Yartzoff v. Thomas (9th Cir. 1987) 809 F.2d 1371, 1376.) Moreover, in rebutting an employers proffered nonretaliatory explanation for an adverse employment action, [a] plaintiff is not limited to a direct attack on the employers explanation. (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 816.) For example, evidence that an employee was treated differently from other employees after complaining of discrimination can raise an inference that the treatment was retaliatory. (Id. at p. 817; Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153 [circumstantial evidence of retaliation may include evidence as to how plaintiff was treated in comparison to other workers].)

Appellant filed numerous administrative complaints, lawsuits, and grievances during the course of her employment at San Quentin, and introduced evidence of numerous incidents of subsequent adverse treatment. As to many of these, either respondents offered no legitimate nonretaliatory reason for the adverse treatment, or appellant presented evidence sufficient to create a triable issue of fact as to the whether such a reason existed or was pretextual. Thus, it is clear from the record that appellant presented a sufficient prima facie case as to retaliatory intent to survive summary judgment on this cause of action. (See generally Yanowitz, supra, 36 Cal.4th 1028; Akers v. County of San Diego, supra, 95 Cal.App.4th 1441.) Respondents argument to the contrary in the trial court was premised on the same overly narrow view of the scope of appellants litigable claims that we have rejected, ante, and on facts as to which appellant raised triable issues. Thus, the trial court erred in granting summary judgment on this cause of action.

F. Conclusion

We reverse the judgment in this case on strictly limited grounds. Our opinion should not be taken to reflect any view of the ultimate merits of any of appellants causes of action. Nor does it preclude the filing of a future motion for summary judgment or summary adjudication, at least as to particular causes of action and/or respondents, premised on additional facts or on legal arguments other than those rejected in this opinion. We merely hold that summary judgment was not appropriate on the basis of the factual record presented to the trial court.

G. Other Issues

Appellant contends in her brief that the trial court erred in granting summary judgment while certain of her discovery requests were outstanding. Our decision reversing the trial courts grant of summary judgment makes this contention moot. On remand, if there is outstanding discovery to which appellant is legally entitled, we trust respondents will provide it to her, either voluntarily or by order of the trial court.

Our decision also obviates the need for us to reach the merits of appellants contention that after the entry of the order granting summary judgment, appellant discovered that respondents had obtained documents from the State Personnel Board that should have been produced in discovery. We leave it to the trial court to determine whether any improper withholding of such documents occurred, and if so, what the appropriate remedy should be.

III. Disposition

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. Appellant shall recover her costs on appeal.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Reardon, J.

_________________________

Sepulveda, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

[1] By way of background, appellant alleged in her complaint actions by respondents starting in March 1992, and continuing through January 1995, that she contended constituted or evidenced discrimination, harassment, and retaliation. This conduct formed the basis for prior complaints to the DFEH in June 1993, and to the federal Equal Employment Opportunity Commission (EEOC), as well as two prior unsuccessful lawsuits. Appellant avers that both lawsuits were dismissed for procedural reasons rather than on their merits, but in any event, the present case is not based on the conduct that formed the factual basis for the earlier cases.

[2] In formulating our summary of the relevant events, we have resolved all factual issues in appellants favor, as we must on review of an order granting summary judgment. (Hinesley v. OakshadeTownCenter (2005) 135 Cal.App.4th 289, 294; Birschtein v. New United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 999 (Birschtein).) Thus, statements of fact in this opinion should be construed to mean either that the fact was undisputed for the purpose of the summary judgment motion, or that appellant produced evidence sufficient to create a triable issue as to the existence of that fact.

[3] As noted, respondents moved for summary judgment and summary adjudication on several alternative grounds. On appeal, however, respondents do not argue that even if the trial court erred in granting summary judgment on the stated grounds, the judgment should still be affirmed, in whole or in part, on alternative grounds. Accordingly, although we have gone beyond the trial courts stated reasons in our analysis, and have satisfied ourselves that appellant presented evidence sufficient to support a prima facie case for each of her causes of action, our opinion does not address the alternative grounds for summary judgment or summary adjudication that were raised below, but neither addressed by the trial court nor briefed on appeal.

[4] Respondents do not contend, nor did the trial court rule, that the permanence factor precludes the application of the continuing violation doctrine in the present case.

[5] These facts, together with the absenc