Danesa Simon v. California Department of Corrections and Rehabilitation

Defendant California Department of Corrections and Rehabilitation’s (“Defendant” or “CDCR”) Motion for Summary Judgment, or in the alternative Summary Adjudication, is DENIED.

REQUEST FOR JUDICIAL NOTICE

Defendant’s Request for Judicial Notice No. 1 is GRANTED. (Evid. Code, § 452, subd. (d).)

OBJECTIONS TO EVIDENCE

Defendant’s Objections to Evidence Nos. 2, 3, 6, 7, 8, and 9 are SUSTAINED. Objections Nos. 1, 4, 5, 10, 11, 12, 13, 14, and 15 are OVERRULED.

LEGAL STANDARD

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if the party does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant ... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467, as modified (Jan. 24, 2008).)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Ibid.; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Plaintiff’s First Amended Complaint (“FAC”) states four causes of action: 1. Race Discrimination; 2. Race Harassment; 3. Disparate Treatment; and 4. Failure to Take Reasonable Steps to Prevent and Correct Discrimination and Harassment. Defendant moves for Summary Judgment, or in the alternative Summary Adjudication, on the following issues:

ISSUE No. 1: Defendant CDCR is entitled to summary judgment or summary adjudication on Plaintiff’s discrimination claim under the Fair Employment and Housing Act (“FEHA”) because Plaintiff was hired for the position she applied for and there were no delays in the process based on her race.

ISSUE No. 2: Defendant CDCR is entitled to summary judgement or summary adjudication on Plaintiff’s race harassment claim under FEHA because Plaintiff was not subject to a hostile work environment and because Plaintiff failed to file an administrative complaint for race harassment before filing her lawsuit.

ISSUE No. 3: Defendant CDCR is entitled to summary judgment or summary adjudication on Plaintiff’s disparate treatment claim in violation of FEHA because Plaintiff was hired for the position she applied for, there were no delays in the process based on her race, and CDCR treated Plaintiff the same as all other candidates.

ISSUE No. 4: Defendant DSH is entitled to summary judgment or summary adjudication on Plaintiff’s claim of failure to take all reasonable and necessary steps to prevent and correct discrimination and harassment under FEHA because her underlying claims are not viable.

(See Notice of Motion, p. 2:1-16.)

Race Discrimination

It is an unlawful employment practice for an employer to refuse to hire or employ a person, to discharge a person from employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment on the basis of race or religious creed. (Gov. Code, § 12940, subd. (a).)

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that: (1) he or she was a member of a protected class; (2) he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)

Proof of discriminatory intent often depends on inferences rather than direct evidence. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th243, 283, citing Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1386.) And because it does, “very little evidence of such intent is necessary to defeat summary judgment.” (Id., citing Nadaf–Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 991–992.) Put conversely, summary judgment should not be granted unless the evidence cannot support any reasonable inference for plaintiff. (Id., citing Spitzer v. Good Guys, Inc., supra, 80 Cal.App.4th at p. 1386; Miller v. Department of Corrections (2005) 36 Cal.4th 446, 470.)

Here Defendant contends there are no adverse employment action “Plaintiff was hired for the position she applied for and there were no delays in the process based on her race.” Defendant’s facts in support of Summary Adjudication of this issue are sufficient to meet Defendant’s burden. (See Separate Statement of Undisputed Material Facts (“UMF”) Nos. 1-30. In response, Plaintiff has demonstrated triable issues of material fact exist. (See Plaintiff’s Response to Separate Statement of Undisputed Material Facts (“RSS”) Nos. 6-12, 15, 17-22, 24-30.)

Race Harassment

Exhaustion of Administrative Remedies

Exhaustion of an administrative remedy is generally a jurisdictional prerequisite to an action in court. (Baker v. Children's Hosp. Med. Ctr. (1989) 209 Cal.App.3d 1057, 1062.) Here, it is undisputed that Plaintiff filed a timely DFEH claim and that Plaintiff was issued a right to sue letter. (UMF No. 32.) The question is whether Plaintiff can maintain the cause of action for harassment when it was not specifically enumerated in the DFEH claim.

In Brown v. City of Sacramento (2019) 37 Cal.App.5th 587, 600, the Court of Appeal stated: The administrative exhaustion requirement is satisfied if FEHA claims in the judicial complaint are “ ‘like and reasonably related to’ “ those in the DFEH complaint or “likely to be uncovered in the course of a DFEH investigation”. In determining whether a Plaintiff exhausted his administrative remedies the court construes the DFEH complaint “liberally” and “in light of what might be uncovered by a reasonable investigation.” (Id.)

Though the DFEH complaint does not specifically discuss harassment based on race, the Court will construe the DFEH complaint broadly. There is at least a triable issue as to whether the race harassment claim was reasonably related to the race discrimination claim and likely to be uncovered during the course of the DFEH investigation.

Hostile Work Environment

Defendant next contends that the Harassment claim fails because Plaintiff cannot establish she suffered a hostile work environment.

FEHA prohibits harassment of an employee “because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status.” (Gov. Code, § 12940, subd. (j)(1).) “To establish a prima facie case of harassment, [Plaintiff] must show that (1) [Plaintiff] is a member of a protected class; (2) [Plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on [Plaintiff's] protected status; (4) the harassment unreasonably interfered with [Plaintiff's] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Galvan v.

Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 563.) A hostile work environment is created “when the harassing behavior is pervasive or severe.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) In other words, the harassment must be “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 [protected status].” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.) Thus, “an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” (Lyle v.

Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.)

In determining if harassment is severe enough to be actionable, “[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.]” (Miller, supra, 36 Cal.4th at p. 462, quoting Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81-82.) This is an inquiry requiring “careful consideration of the social context in which particular behavior occurs and is experienced by its target” in which “[c]ommon 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.” (Ibid.)

Here Defendant has made a sufficient initial showing that the acts complained of were not sufficiently pervasive or severe to constitute harassment. (See UMF Nos, 1-32.) The burden therefore shifted back to Plaintiff to demonstrate triable issues of material fact exist. Plaintiff has done so. (See RSS Nos. 6-12, 15, 17-22, 24-32.) Whether a jury finds that these incidents are so unwelcome, severe or pervasive to alter Plaintiff's conditions of employment and create a hostile work environment is a question of fact.

Disparate Treatment

Under a disparate treatment theory, discrimination occurs when the employer treats some people less favorably than others because of their race, color, ... or national origin. (Frank v. Cnty. of Los Angeles (2007) 149 Cal.App.4th 805, 822–23.) The plaintiff must prove the ultimate fact that the defendant engaged in intentional discrimination. (Id.) However, Federal and California courts have acknowledged the difficulty of proving intentional discrimination: Proving intentional discrimination can be difficult because there will seldom be “eyewitness” testimony as to the employer's mental processes. (Id.) It is rare for a plaintiff to be able to produce direct evidence or ‘smoking gun’ evidence of discrimination. (Id.) Thus, plaintiffs may demonstrate via indirect or circumstantial evidence that they were the victims of discrimination. (Id.)

In this case, Defendant asserts that the Disparate Treatment claim fails because Plaintiff was hired for the position she applied for, there were no delays in the process based on her race, and CDCR treated Plaintiff the same as all other candidates. Again, Defendant has met its initial burden on Summary Adjudication. (See UMF Nos. 1-30.) Plaintiff has successfully countered to demonstrate triable issues of material fact remain. (See RSS Nos. 6-12, 15, 17-22, 24-32.)

Failure to Prevent

The elements of a claim for failure to take all reasonable steps to prevent discrimination or harassment or retaliation from occurring are: (1) plaintiff was subjected to discrimination, harassment or retaliation; (2) defendant failed to take all reasonable steps to prevent discrimination, harassment or retaliation; and (3) this failure caused plaintiff to suffer injury, damage, loss or harm. (Caldera v. Dep't of Corr. & Rehab. (2018) 25 Cal.App.5th 31, 43.)

Here Defendant argues this claim fails because her underlying claims are not valid, i.e. she cannot prove the first element. However, as stated above, at this stage in the proceedings, the claims are not properly resolved. Because they survive summary judgment/adjudication, so too does the claim for failure to prevent.

For these reasons, the Motion for Summary Judgment, or in the alternative Summary Adjudication, is denied.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for August, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1605267272?pwd=908CbP6TV2mhCAyai1nzo6lyz2dKaw.1 Meeting ID: 160 526 7272 Passcode: 026935

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov