Jones v. Department of Corrections & Rehabilitation
A FEHA plaintiff who cannot tie the conduct she complains of to her protected status — and who shows only isolated slights rather than a substantial adverse change in employment — cannot survive summary judgment on harassment, discrimination, or retaliation.
Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367
Discrimination
Disparate treatment
Adverse employment action
FEHA (Gov. Code § 12940)
In brief. Affirming summary judgment for the employer, the Court of Appeal held that a correctional officer’s FEHA claims for sexual harassment, race and gender discrimination, and retaliation all failed because she could not establish two essentials: a nexus between the conduct and her protected status, and a “substantial adverse change in the terms and conditions of [her] employment.” (Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1377, 1380.) Asked at deposition whether her coworkers’ conduct was prompted by her gender or race, she “repeatedly answered, ‘No’ and ‘I don’t know’”; that admission, the court held, “negates her FEHA claim.” (Id. at p. 1378.) Her assault, emotional-distress, and negligent-supervision claims were barred by the workers’ compensation exclusivity rule. (Id. at pp. 1382–1385.)
By Jonathan J. Delshad
Founder & Editor-in-Chief
Facts
FEHA makes it unlawful for an employer to “discriminate against [a] person in compensation or in terms, conditions, or privileges of employment” because of race or sex (Gov. Code, § 12940, subd. (a)), and separately to “harass an employee” because of sex (id., subd. (j)(1)). (Jones, supra, 152 Cal.App.4th at pp. 1376–1377.) A hostile-environment harassment claim has five elements, including that “the harassment complained of was based on sex” and was “sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” (Id. at p. 1377, quoting Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.)
Kim C. Jones, “an African-American female,” worked as a correctional officer at the R.J. Donovan Correctional Facility from 1987 and became a rock crew officer in December 2002, supervising inmate work crews. (Jones, supra, 152 Cal.App.4th at p. 1373.) She alleged that from December 2002 to December 2003 the male correctional officers treated her “with open hostility, disrespect and cruelty.” (Ibid.) Among the incidents: she was denied a schedule change two male officers received; she and a male officer (McMinn) each received a “Job Expectations” memorandum; a supervisor barred all crew officers from his office and directed her to work at a tool-storage “Connex” she said was rodent-infested; and, on December 4, 2003, she and McMinn had an altercation over a wheelbarrow during which he “grabbed her arm and started ‘banging her body around.’” (Id. at pp. 1373–1374.) Jones reported neck, wrist, and shoulder pain, went on medical disability leave that day, did not return to work, and collected workers’ compensation benefits. (Id. at p. 1374.)
In opposition to summary judgment, Jones “listed a ‘series of adverse employment actions’” — nine forms of hardship inflicted by her male coworkers — and contended these collectively altered the conditions of her employment. (Jones, supra, 152 Cal.App.4th at pp. 1374–1375.) The employer countered that her opposition “presented no evidence that her race or gender was the basis for” any of the conduct, and that each challenged action had a legitimate, nondiscriminatory explanation — the expectations memoranda issued under policy, the office ban applied to all crew officers, and the Connex assignment made because she was to inventory tools there. (Id. at p. 1375.)
Procedural history
Jones sued the Department of Corrections and Rehabilitation (CDCR) and several individual supervisors, alleging FEHA causes of action for gender and race discrimination, sexual harassment, and retaliation, and common-law claims for assault and battery, intentional and negligent infliction of emotional distress, and negligent supervision and retention. (Jones, supra, 152 Cal.App.4th at p. 1373.) The trial court (Judge Ronald S. Prager) granted summary judgment for all defendants. (Id. at p. 1375.) The Court of Appeal, Fourth Appellate District, Division One, affirmed in an opinion by Justice O’Rourke, with Acting Presiding Justice Huffman and Justice McDonald concurring, reviewing the judgment de novo. (Id. at pp. 1372, 1375, 1385.)
Issue
The dispositive questions were whether the plaintiff raised triable issues of material fact that (1) the conduct she complained of was “based on” her gender or race; (2) the conduct was sufficiently severe or pervasive to constitute actionable harassment; (3) she suffered an “adverse employment action” supporting her discrimination and retaliation claims; and (4) her common-law tort claims escaped the workers’ compensation exclusivity rule. (Jones, supra, 152 Cal.App.4th at p. 1372.) The employer, as the moving party, bore the burden to show that one or more elements of each cause of action could not be established or that a complete defense applied. (Id. at pp. 1375–1376.)
Holding
Summary judgment was properly granted. The harassment claim failed for two independent reasons: there was no “nexus between the alleged harassment and Jones’s gender,” because at deposition she “repeatedly answered, ‘No’ and ‘I don’t know’” when asked whether her coworkers’ conduct was prompted by gender or race, and she did not show conduct “sufficiently severe or pervasive to constitute harassment.” (Jones, supra, 152 Cal.App.4th at pp. 1378–1379.) The discrimination claim failed for the same lack of nexus and the absence of rebuttal to the employer’s legitimate reasons. (Id. at p. 1380.) The retaliation claim failed because Jones produced no evidence of an “adverse employment action” — a “substantial adverse change in the terms and conditions” of employment — having suffered no loss of classification, position, salary, benefits, or hours, and no constructive discharge. (Id. at pp. 1380–1382.) The assault, emotional-distress, and negligent-supervision claims were barred by workers’ compensation exclusivity. (Id. at pp. 1382–1385.)
Reasoning
Harassment must be “based on” a protected characteristic — and the plaintiff’s own testimony defeated that element. The court set out the familiar standard that actionable harassment requires a workplace “permeated with ‘discriminatory intimidation, ridicule, and insult’ … that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment.’” (Jones, supra, 152 Cal.App.4th at p. 1377, quoting Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21.) But the threshold element is causation: the harassment must be “based on sex.” (Ibid.) On that point the record was fatal to Jones. “Respondents … pointed to Jones’s deposition testimony in which several times she was asked whether the comments and complaints her coworkers made about her were prompted by her gender or race. Jones repeatedly answered, ‘No’ and ‘I don’t know.’ The absence of the nexus between the alleged harassment and Jones’s gender negates her FEHA claim.” (Id. at p. 1378.)
The conduct was not severe or pervasive. Independently, the court held the conduct fell short of the “general civility code” limitation that prevents harassment law from reaching “‘simple teasing,’ … offhand comments, and isolated incidents.” (Jones, supra, 152 Cal.App.4th at pp. 1377–1378, quoting Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131, and Faragher v. Boca Raton (1998) 524 U.S. 775, 788.) Viewing the totality of circumstances, the court agreed with the trial court that the incidents were “akin to being a collection of isolated and objectively non-discriminatory events.” (Id. at p. 1378.) The wheelbarrow altercation was “the most severe conduct she complained about because it involved physical conduct,” but it “was a one-time occurrence, which was unrelated to her gender,” and the “daily criticisms” amounted to “no more than comments that she was ‘not doing her job.’” (Id. at pp. 1378–1379.)
The disparate-treatment claim failed for want of intent and nexus. Turning to discrimination, the court explained that a disparate-treatment claim “requires a showing that the employer acted with discriminatory intent,” proved through the Guz/McDonnell Douglas prima facie framework, and that on a defense summary-judgment motion the employer may show either that an element cannot be established or that legitimate, nondiscriminatory reasons underlay the action. (Jones, supra, 152 Cal.App.4th at pp. 1379–1380.) Because “there is no nexus shown between the coworkers’ conduct and Jones’s gender or race,” and because she “failed to produce evidence rebutting Respondents’ proffered reasons … or [showing] they were merely pretexts,” the discrimination claim could not stand. (Id. at p. 1380.)
“Adverse employment action” requires a substantial, material change — measured collectively, but still real. The retaliation analysis supplied the opinion’s most-cited teaching on the adverse-action element. Quoting Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, the court explained that an adverse employment action “is not limited to ‘ultimate’ employment acts, such as hiring, firing, demotion or failure to promote,” but reaches “the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for career advancement.” (Jones, supra, 152 Cal.App.4th at pp. 1380–1381.) At the same time, “a mere offensive utterance or … a pattern of social slights … cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment,” and a “series of alleged discriminatory acts must be considered collectively rather than individually.” (Id. at p. 1381.) Applying the standard, the court found Jones “never experienced a loss or reduction in her classification, position, salary, benefits and work hours,” her employment “was not terminated,” and she made no constructive-discharge showing under Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251. (Id. at pp. 1381–1382.) Her opposition relied on undifferentiated “block citations to her deposition testimony,” and the court reiterated that “[t]he reviewing court is not required to make an independent, unassisted study of the record.” (Id. at pp. 1381–1382.)
The tort claims were barred by workers’ compensation exclusivity. The emotional-distress claims failed both as derivative of the unproven discrimination and because, even if the conduct could be “characterized as intentional, unfair or outrageous, it is nevertheless covered by the workers’ compensation exclusivity provisions.” (Jones, supra, 152 Cal.App.4th at p. 1382, quoting Shoemaker v. Myers (1990) 52 Cal.3d 1, 25.) The assault and battery claim against McMinn arising from the wheelbarrow incident likewise fell within exclusivity: under Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, the incident “took place at the worksite, during the scope of McMinn’s employment, and arose from a workplace dispute,” the kind of “[f]lare-up[]” whose “risks of injury … are inherent in the working environment.” (Id. at pp. 1383–1384.) The negligent-supervision claim, derivative of the assault and discrimination claims, “necessarily fail[ed] as well.” (Id. at p. 1385.)
Significance
Jones is a workhorse defense authority on the proof a FEHA plaintiff must marshal to reach a jury, and it bears directly on the disparate-treatment elements captured in CACI No. 2500 and the adverse-employment-action concept that runs through the FEHA instructions. Its enduring contribution is the blunt holding that a plaintiff’s inability to connect mistreatment to a protected characteristic is dispositive: where the plaintiff herself testifies she does not know whether the hostility was “prompted by her gender or race,” the “absence of … nexus … negates her FEHA claim.” (Jones, supra, 152 Cal.App.4th at p. 1378.) The decision also crystallizes, by faithful application of Yanowitz, that the “adverse employment action” element demands a “substantial adverse change in the terms and conditions” of employment, not an accumulation of “social slights.” (Id. at pp. 1380–1381.)
The opinion’s reach should not be overstated. It is a fact-bound summary-judgment affirmance, and several of its rulings turned on the plaintiff’s deficient opposition — block-cited deposition testimony and rebuttals “not responsive to Respondents’ exact statement of material undisputed fact.” (Jones, supra, 152 Cal.App.4th at pp. 1381–1382.) It does not hold that a hostile, gender-neutral campaign is never actionable; it holds that this plaintiff produced no evidence of the protected-status nexus or of a material change in her employment. And its workers’-compensation-exclusivity holding follows settled Supreme Court authority (Torres, Shoemaker, Livitsanos) rather than breaking new ground.
Key quotes
“The absence of the nexus between the alleged harassment and Jones’s gender negates her FEHA claim.” (Jones, supra, 152 Cal.App.4th at p. 1378.)
“[A]n adverse employment action is not limited to ‘ultimate’ employment acts, such as hiring, firing, demotion or failure to promote, but also includes the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for career advancement.” (Id. at pp. 1380–1381.)
“[A] series of alleged discriminatory acts must be considered collectively rather than individually in determining whether the overall employment action is adverse.” (Id. at p. 1381.)
Practice pointer
The single most important lesson of Jones is to lock down the protected-status nexus before discovery closes — and, for plaintiffs, never to concede it. The case was lost at the plaintiff’s own deposition, where she answered “No” and “I don’t know” when asked whether the conduct was because of gender or race. (Jones, supra, 152 Cal.App.4th at p. 1378.) Prepare the client to explain the factual basis for inferring discriminatory motive (comparator evidence, gender- or race-linked comments, differential treatment of similarly situated coworkers) rather than to speculate or disclaim. On the adverse-action element, do not simply list grievances: tie the conduct to a “substantial adverse change in the terms and conditions” of employment, and argue the incidents collectively under Yanowitz while supporting each with pinpoint record citations — the court faulted the plaintiff’s “block citations” and refused to mine the record for her. (Id. at pp. 1381–1382.) Finally, plead around workers’ compensation exclusivity with care: physical altercations that are “flare-ups” inherent in the workplace will be barred, so anchor any viable tort theory in conduct outside the compensation bargain. (Id. at pp. 1383–1384.) For defense counsel, Jones is a model summary-judgment record: separate statement tied to undisputed facts, deposition admissions on the nexus element, and legitimate, documented explanations for each challenged action.
Open questions
The court expressly declined to decide “whether each alleged … act constitutes an adverse employment action in and of itself,” resting instead on the absence of any triable issue that the conduct, even considered collectively, materially altered the terms and conditions of employment. (Jones, supra, 152 Cal.App.4th at p. 1381, quoting Yanowitz, supra, 36 Cal.4th at p. 1055.) The decision therefore leaves open how a better-developed record — one connecting facially neutral hostility to protected status through comparator or circumstantial proof — would fare, and where exactly the line lies between an actionable “concerted pattern of harassment” and a non-actionable “collection of isolated … events.” (Id. at pp. 1378–1379.) The opinion also does not address the scope of employer liability for coworker (as opposed to supervisor) harassment beyond noting the framework, because the claim failed at the threshold causation and severity elements.