SIMS, J. I respectfully dissent.
The California Department of Corrections (CDC) charged Sergeant Johnny C. Wallace with, among other things, unlawful discrimination pursuant to Government Code section 19572, subdivision (w),1 which subjects employees to discipline for unlawful discrimination. I agree with the trial court that unlawful discrimination was shown, and the State Personnel Board (Board) abused its discretion in concluding Wallace’s free speech rights precluded discipline for unlawful discrimination. I would affirm the trial court’s decision to direct the Board to set aside its decision and reconsider appropriate punishment.2
The record shows, and the Board found, Sergeant Wallace resented Hispanic officers receiving preferential treatment under CDC’s affirmative [152]action policy. He resented G. Picone, a female Hispanic officer, because he believed she, as a minority female, had received undeserved preferential treatment under CDC’s affirmative action policy. Because of this animosity, Wallace criticized Picone to others in the workplace.3 When Picone asked him to stop, he impliedly refused, slapping the wall in anger and stating through clenched teeth that he was “tired of this Hispanic shit; us white guys are tired of being looked over.” When Picone expressed sympathy but defended affirmative action, Wallace grabbed her shirt, shook her and reiterated “We’re sick and tired of it.”4
As found by the Board, the incident upset and frightened Picone and was a contributing factor in her decision to transfer to a different correctional facility. Picone’s testimony before the Board supports these findings, as follows:
“Q. . . . [T]his incident bothered you quite a bit?
“A. Yes, it did.
“Q. Because of that did you ask to be transferred from DVI [Deuel Vocational Institution]?
“A. Uh—I asked for a job change initially.
“Q. And then that didn’t go through?
“A. No.
“Q. So eventually—did you eventually ask for a job transfer?
“A. Yes.
“Q. Would it be correct to state that you are at the other facility as a result of this incident?
“[Relevance objection overruled.]
[153]“Q. Wouldn’t it be correct to state that the reason you transferred is because of the incident in the north corridor?
“Administrative Law Judge Callis: That’s leading. Why didn’t [szc] you transfer? Why didn’t [szc] you seek to transfer to Northern California Women’s Facility?”
“The Witness: To get away from all the negative stuff and to see how—I was not even able to get a job change. And situations like this were occurring and the racism was just getting kind of worse throughout the institution.
“[ALJ]: Was this the result of the actual incident with Sergeant Wallace or as the result of the aftermath after the complaint was made and he was fired? If you can tell?
“The Witness: I think it all—
“[ALJ]: All of it?
“The Witness: Yes.”
“[ALJ]: . . . After this incident took place and these things were said between you and Sergeant Wallace, would you have had reservations working for Sergeant Wallace after that?
“The Witness: Yes.
“[ALJ]: And why is that?
“The Witness: Because of the way he felt towards me. There was a lot of hate, and I would not feel safe working around him or with him.
“[Q. by CDC’s counsel]: Can you explain why you—to a layman, why you wouldn’t feel safe working around him?
“A. Because if someone hates a person that bad, I would think if anything were to happen, I would not feel comfortable with him backing me.
“Q. In what kind of situations do you mean?
“A. If there was an emergency situation occurring, I would not feel comfortable.” (Italics added.)
[154]These circumstances establish that Wallace engaged in unlawful discrimination unprotected by the constitutional guarantee to freedom of speech. I will first explain that, setting aside the First Amendment question, Wallace’s conduct (words and actions) constituted unlawful discrimination. I will then explain that the Board abused its discretion in dissecting the statements from the manner of delivery. Finally, I will explain why the unlawful discrimination is not protected by the First Amendment, though speech was one vehicle through which Wallace violated the regulation against unlawful discrimination.
I. Unlawful Discrimination
The Board apparently concluded there was no unlawful discrimination because this was a private discussion in which Wallace expressed his own personal views, a single incident which was not severe or pervasive enough to create a hostile work environment. I disagree.
CDC could rightfully conclude Wallace’s conduct—verbal and nonverbal —in its entirety created a hostile work environment for a female Hispanic officer in violation of federal and state laws against discrimination in employment.
“Title VII of the Civil Rights Act of 1964 [(42 U.S.C. § 2000e et seq.)] makes it ‘an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.’ [Citation.] As [was] made clear in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986 [106 S.Ct. 2399, 91 L.Ed.2d 49], this language ‘is not limited to “economic” or “tangible” discrimination. The phrase “terms, conditions, or privileges of employment” evinces a congressional intent “to strike at the entire spectrum of disparate treatment of men and women” in employment,’ which includes requiring people to work in a discriminatorily hostile or abusive environment. [Citations.] When the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’ [citation], that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment’ [citation], Title VII is violated.” (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 [114 S.Ct. 367, 370, 126 L.Ed.2d 295, 301], italics added [tangible psychological injury is not required for title VII claim].) “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be [155]abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.” (Id. at pp. 21, 22 [114 S.Ct. at p. 370, 126 L.Ed.2d at p. 302].)
Similar standards apply under California’s Fair Employment and Housing Act (FEHA), Government Code section 12940 et seq. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 606 [262 Cal.Rptr. 842].)
As indicated by the majority, CDC is required to engage in affirmative action in order “to eliminate and rectify present effects of past discriminatory employment practices . . . .” (Cal. Code Regs., tit. 2, § 547.30.)
Here, Wallace did not merely express opposition to affirmative action. His conduct (words and actions) undermined the affirmative action policy and subjected Picone to an insulting, vile, venomous tirade against her ethnicity, accompanied by a physical assault.
That the conversation occurred in private has nothing to do with whether or not it constituted unlawful discrimination. Unlawful discrimination often occurs outside the presence of witnesses. That the affirmative action topic was a matter of public concern, as found by the Board, goes to the First Amendment question, not the question whether Wallace’s conduct constituted unlawful discrimination.
It does not matter that Wallace was not speaking on behalf of CDC in expressing his own personal views opposing CDC policy. The FEHA prohibits not only “employers” but also “any other person” from harassing an employee because of race, color, national origin, ancestry, sex, etc. (Gov. Code, § 12940, subd. (h)(1).) Harassment of an employee by an employer’s agents or supervisors is unlawful. (Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(2).) Harassment by a nonsupervisorial employee is unlawful if the employer, its agents or supervisors (1) knows of such conduct and fails to take immediate and appropriate corrective action, or (2) should have known (unless employer shows it took reasonable steps to prevent harassment from occurring). (Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(3).) Although Wallace was not Picone’s supervising officer at the time in question, he was a supervisor and a superior officer who outranked Picone. In the paramilitary organization of CDC, Wallace plainly had authority over Picone. I agree with the trial court that it was clear Wallace was in a position to hamper Picone’s career and negatively affect her position with CDC.
It does not matter that Wallace testified he bears no animosity against any minorities generally, and had coworkers testify to the same effect. As found [156]by the Board, Wallace was resentful about Picone and other Híspanles receiving preferential treatment in job assignments, interfering with his own ability to attain a more favorable assignment.
It does not matter that the tirade occurred only once. An isolated incident, if severe enough, can constitute unlawful discrimination creating a hostile work environment. Thus, Harris v. Forklift Systems, Inc., supra, 510 U.S. 17 [114 S.Ct. 367,126 L.Ed.2d 295], though involving multiple incidents, said, “the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality.” (Id. at p. 22 [114 S.Ct. at p. 371, 126 L.Ed.2d at p. 302], italics added.) Harris further stated: “[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. . . . [N]o single factor is required.” (Id. at p. 23 [114 S.Ct. at p. 371,126 L.Ed.2d at pp. 302-303], italics added.) Thus, multiple incidents are not required. (See also Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 877-878 [dictum: single act may be enough if sufficiently severe]; Simon v. Morehouse School of Medicine (N.D.Ga. 1995) 908 F.Supp. 959, 969-970 [though other acts were also alleged, allegation of rape, even if it stood alone, would be sufficiently severe to meet the Supreme Court’s Harris test, which requires only severe or pervasive conduct]; Achampong, Employer Liability for Hostile Environment Sexual Harassment Based on a Single Occurrence (1995) 12 Hofstra Lab. LJ. 187.)
Wallace cites Proksel v. Gattis (1996) 41 Cal.App.4th 1626 [49 Cal.Rptr.2d 322], and Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d 590, for the proposition that a single incident will not suffice to show hostile work environment. However, Fisher (in which the statement was dictum) predated the United States Supreme Court decision in Harris. Proksel merely cited Fisher in a footnote seemingly unnecessary to the opinion, without mentioning Harris. (Proksel, supra, 41 Cal.App.4th at p. 1630, fn. 5 [plaintiff had no viable claim, where only complaint was that employer showed favoritism to another employee, with whom he was having a consensual affair].)
Thus, a single incident may suffice.
“[T]he required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.”
[157](Ellison v. Brady, supra, 924 F.2d at p. 878.) The context of the incident is also critical. “[R]emarks accompanied by threatening gestures or contorted facial features, or delivered from so short a distance from the listener’s face as to invade the listener’s private space” may render severe conduct with might be considered mildly offensive absent such circumstances. (Baskerville v. Culligan Intern. Co. (7th Cir. 1995) 50 F.3d 428, 431 [suggestive sexual comments spread out over seven months did not create hostile work environment].)
Here, the incident between Wallace and Picone was severe. Wallace made physically threatening gestures, clenched his teeth, became red with rage, and spoke close to Picone while shaking her by her shirt.
It is also clear Picone subjectively perceived a hostile work environment. Though she saw anti-ethnic bias by persons other than Wallace, Wallace was clearly the catalyst that forced her out of the workplace.
I agree with the trial court that Wallace engaged in unlawful discrimination. The question is whether the First Amendment protects him from the consequences of his unlawful discrimination because part of the discrimination took the form of speech.
II. Dissection of Words and Actions Improper
The Board said the content of Wallace’s statements was entitled to First Amendment protection, but his “manner of delivering the statements,” i.e., his physical actions and use of derogatory, profane language, was not. The majority, while acknowledging the legal principle that Wallace’s statements must be viewed together with their time, place, manner and context (Rankin v. McPherson (1987) 483 U.S. 378, 384-385 [107 S.Ct. 2891, 2897, 97 L.Ed.2d 315, 324-325]), approve this isolation of some words from other words and from actions. (Maj. opn., ante, at pp. 145-147.) I disagree.
Wallace was not charged with merely speaking generally about affirmative action. He was charged with unlawful discrimination against a female Hispanic officer.
There is a difference between an academic discussion regarding affirmative action and a verbal and physical tirade by a superior officer against a female, Hispanic, lower officer in a quasi-military organization, accompanied by the use of force.
[158]The majority would require CDC to isolate words from the manner of delivering them, and punish only the accompanying conduct, without consideration of the words.5 I disagree.
Constitutional law requires that we look at the statements in context. We cannot dissect the words from the manner of delivery in determining whether Wallace created a hostile work environment.
Thus, the majority recognize the United States Supreme Court has said that, in balancing the public employee’s interest in making statements of public concern against the government employer’s interest in promoting the efficiency of the public services it performs, “the statement will not be considered in a vacuum; the manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose. . . .” (Rankin v. McPherson, supra, 483 U.S. at p. 388 [107 S.Ct. at p. 2899, 97 L.Ed.2d at p. 327].)
According to the majority, this holding in Rankin and other cases does not prohibit consideration of the content of statements in isolation from accompanying, offensive conduct, because in Rankin and other cases it was the content of the employee’s statement which made it damaging to the employer. (Maj. opn., ante, at p. 147.) However, in those cases there was no accompanying, offensive conduct to consider, or any accompanying conduct was considered. Thus, in Rankin, the employee was discussing with her coworker/boyfriend a news report of an assassination attempt against the president and said, “ ‘if they go for him again, I hope they get him.’ ” (Rankin v. McPherson, supra, 483 U.S. at p. 381 [107 S.Ct. at p. 2895, 97 L.Ed.2d at p. 322].) In Waters v. Churchill (1994) 511 U.S. 661 [114 S.Ct. 1878, 128 L.Ed.2d 686], the employee made comments critical of the employer to a coworker during a dinner break. In Gray v. County of Tulare (1995) 32 Cal.App.4th 1079 [38 Cal.Rptr.2d 317], a captain in the sheriff’s department made statements reported in a local newspaper criticizing the sheriff. The accompanying conduct was considered, in that the court considered among other things the fact that the employee “arranged to meet with a reporter to deliver comments he had prepared in advance,” thus assuring the widest possible distribution. (Id. at p. 1094.)
Moreover, the United States Supreme Court has indicated that context (as well as content) matters most particularly where, as here, the speech occurs in a private conversation, rather than a public forum. Thus, in concluding a public schoolteacher did not forfeit First Amendment protection by speaking [159]privately to the school principal rather than publicly, the court said: “When a teacher speaks publicly, it is generally the content of his statements that must be assessed to determine whether they [disrupted the workplace]. [Citation.] Private expression, however, may in some situations bring additional factors to the . . . calculus. When a government employee personally confronts his immediate superior, the employing agency’s institutional efficiency may be threatened not only by the content of the employee’s message but also by the manner, time, and place in which it is delivered.” (Givhan v. Western Line Consol. School Dist. (1979) 439 U.S. 410, 415, fn. 4 [99 S.Ct. 693, 696, 58 L.Ed.2d 619, 624], original italics.)
Thus, I believe CDC abused its discretion in isolating Wallace’s statements from the manner of delivering them.
Even if we could or should dissect words from accompanying conduct, words such as “I am tired of this Hispanic shit,” spoken in this time, place, manner and context, are not protected by the First Amendment. They are extremely derogatory, directly referring to Picone’s ethnicity, and when spoken by a superior officer in a quasi-military organization, carry an implicit threat to make her life at work miserable. They constitute “fighting words.” (In re John V. (1985) 167 Cal.App.3d 761 [213 Cal.Rptr. 503] [affirming misdemeanor conviction for use of offensive words (“fucking bitch”) in public place likely to provoke immediate violent reaction].) “In California it is well established that the First Amendment does not protect words specifically addressed to another spoken under circumstances which create a clear and present danger that violence will imminently erupt. [Citation.] ‘[T]he mere use of a vulgar, profane, indecorous, scurrilous, opprobious epithet cannot alone be grounds for prosecution. . . . The context in which the words are used must be considered, and there must be a showing that the words were uttered in a provocative manner, so that there was a clear and present danger violence would erupt.’ [Citation.] Although protected conduct may begin with the expression of opinion, it must stop with the perpetration of violence. [Citation.]” (Id. at p. 768.)
III. Unlawful Discrimination Is Not Protected Free Speech
There is ample authority supporting a conclusion that unlawful discrimination is not protected by the constitutional guarantee of free speech.
Indeed, in an era before affirmative action became the state’s policy, the United States Supreme Court held the First Amendment’s free speech guarantee was not violated by allowing California courts to restrain peaceful picketing designed to force an employer to engage in a form of affirmative [160]action in violation of the state’s policy calling for equal treatment of all. (Hughes v. Superior Court (1949) 339 U.S. 460 [70 S.Ct. 718, 94 L.Ed. 985].) The picketers there were a citizens’ group which had asked Lucky Stores to hire only Blacks, as positions became available, until the proportion of Black to White clerks approximated the percentage of Black customers (50 percent). (Id. at pp. 461-462 [70 S.Ct. at p. 719, 94 L.Ed. at p. 990].) When Lucky refused, the citizens’ group began picketing the store carrying placards stating Lucky refused to hire Black clerks in proportion to Black customers. (Ibid.) The United States Supreme Court held a California state court’s injunction restraining the picketers did not violate the right of freedom of speech. The court observed the picketing was contrary to the state’s judicially declared policy condemning “ ‘arbitrary discrimination upon the basis of race and color alone, rather than a choice based solely upon individual qualification for the work to be done.’ ” (Hughes, supra, 339 U.S. at p. 463 [70 S.Ct. at p. 720, 94 L.Ed. at p. 991].) “The Constitution does not demand that the element of communication in picketing prevail over the mischief furthered by its use in these situations.” (Id. at p. 464 [70 S.Ct. at p. 721, 94 L.Ed. at p. 992].) “We cannot construe the Due Process Clause as precluding California from securing respect for its policy against involuntary employment on racial lines by prohibiting systematic picketing that would subvert such policy.” (Id. at p. 466 [70 S.Ct. at p. 722, 94 L.Ed. at p. 993].)
Hughes is distinguishable, because picketing has been recognized as a particularly potent mode of communication intended to induce action. (Hughes v. Superior Court, supra, 339 U.S. at p. 465 [70 S.Ct. at p. 721, 94 L.Ed. at p. 992].)
Nevertheless, the Supreme Court has also recognized there are other circumstances where expression, including unlawful discrimination, may be regulated because of its “secondary effects” rather than its content.6
Thus, in R. A. V. v. St. Paul (1992) 505 U.S. 377 [112 S.Ct. 2538, 120 L.Ed.2d 305], the Supreme Court invalidated a city ordinance which provided: “ ‘Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.’ ” (Id. at p. 380 [112 S.Ct. at p. 2541, 120 L.Ed.2d [161]at p. 315].) An individual prosecuted for burning a cross on a Black family’s lawn argued the ordinance violated free speech rights. The R. A. V. court agreed, faulting the ordinance for not proscribing all fighting words but only a subclass based on race, etc., because of their content. (Id. at p. 391 [112 S.Ct. at p. 2547, 120 L.Ed.2d at p. 323].) The gist of R. A. V. is that “while certain categories of speech and expressive conduct may be regulated, such regulation may not discriminate within that category on the basis of content.” (In re Steven S. (1994) 25 Cal.App.4th 598, 610 [31 Cal.Rptr.2d 644], original italics [upholding statute prohibiting cross-burning on private property of another, though statute discriminated on basis of content].)
However, R. A. V. enunciated several exceptions to the rule, one of which allows the prohibition of expression because of its secondary effects rather than its content. “[A] valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular ‘secondary effects’ of the speech, so that the regulation is ‘justified without reference to the content of the . . . speech,’ [citations]. A State could, for example, permit all obscene live performances except those involving minors. Moreover, since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation’s defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. [Citations.] Thus, for example, sexually derogatory ‘fighting words,’ among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices, [citations]. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.”7 (R. A. V. v. St. Paul, supra, 505 U.S. at pp. 389-390 [112 S.Ct. at pp. 2546-2547, 120 L.Ed.2d at pp. 321-322], italics added, original italics deleted.)
[162]In R. A. V., the city argued the ordinance came within the secondary effects theory because the ordinance was intended not to inhibit free expression but rather to protect against the victimization of persons who were particularly vulnerable because of their membership in a group that historically had suffered discrimination. (R. A. V. v. St. Paul, supra, 505 U.S. at p. 394 [112 S.Ct. at p. 2549, 120 L.Ed.2d at p. 325].) The court said that, even assuming an ordinance that completely proscribed, rather than merely regulated, a specified category of speech could ever be considered to be directed only to the secondary effects of such speech, the ordinance in question was not directed to secondary effects. Listeners’ reactions or the emotive impact of speech on the audience were not “secondary effects” within the meaning of that principle. (Ibid.)
The United States Supreme Court has subsequently explained that R. A. V. is limited to restrictions directed at expression rather than conduct. Thus, Wisconsin v. Mitchell (1993) 508 U.S. 476 [113 S.Ct. 2194, 124 L.Ed.2d 436], held a criminal defendant’s First Amendment free speech rights were not violated by an enhanced prison sentence for aggravated battery under a state “hate crimes” statute authorizing enhancement when the victim was selected because of race. The defendant there argued the penalty-enhancement statute violated his First Amendment rights by punishing him for bigoted beliefs (discriminatory motive) rather than for conduct. The court disagreed, stating, “motive plays the same role under the [penalty-enhancement] statute as it does under federal and state antidiscrimination laws, which we have previously upheld against constitutional challenge. [Citations.] Title VII, ... for example, makes it unlawful for an employer to discriminate against an employee ‘because of such individual’s race, color, religion, sex, or national origin.’ [Citation.]. . . [Hishon v. King & Spalding (1984) 467 U.S. 69, 78 [104 S.Ct. 2229, 2235, 81 L.Ed.2d 59, 68-69], . . . rejected the argument that Title VII infringed employers’ First Amendment rights. And more recently, ...[R. A. V. v. St. Paul, supra, 505 U.S. 377 [112 S.Ct. 2538, 120 L.Ed.2d 305], . . . cited Title VII. . . as an example of a permissible content-neutral regulation of conduct.
“Nothing in [R. A. V.] compels a different result here. That case involved a First Amendment challenge to a municipal ordinance prohibiting the use of ‘ “fighting words” that insult, or provoke violence, “on the basis of race, color, creed, religion or gender.” ’ [Citations.] Because the ordinance only proscribed a class of ‘fighting words’ deemed particularly offensive by the [163]city—i.e., those ‘that contain . . . messages of “bias-motivated” hatred,’ [citation]—[the court] held that it violated the rule against content-based discrimination. [Citation.] But whereas the ordinance struck down in R. A. V. was explicitly directed at expression (i.e., ‘speech or messages’) [citation], the [penalty-enhancement] statute [at issue] in this case [(Mitchell)] is aimed at conduct unprotected by the First Amendment.” (Wisconsin v. Mitchell, supra, 508 U.S. at p. 487 [113 S.Ct. at p. 2200,124 L.Ed.2d at pp. 446-447], original italics.)
In the Hishon case, to which Mitchell referred, the Supreme Court held a female attorney employed by a law partnership stated a claim cognizable under title VII where she alleged the partnership discriminated against her when it failed to invite her to become a partner. Hishon rejected the law firm’s argument that application of title VII would infringe constitutional rights of expression or association, stating in part “ ‘[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections.’ ” (Hishon v. King & Spalding (1984) 467 U.S. 69, 78 [104 S.Ct. 2229, 2235, 81 L.Ed.2d 59, 68-69].)
The target of the employment discrimination laws is the secondary effect of such conduct—employment discrimination—not its expressive content nor its mere emotive impact on listeners.
“A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers.” (Harris v. Forklift Systems, Inc., supra, 510 U.S. at p. 22 [114 S.Ct. at pp. 370-371,126 L.Ed.2d at p. 302].)
Here, the discriminatory conduct occurred in an anti-affirmative-action speech. Public agencies were required at the time to have affirmative action programs in order to correct past unlawful discrimination. Wallace expressed a bias against Picone based on her sex and ethnicity, because her sex and ethnicity gave her advantages under the affirmative action program. Wallace created an abusive work environment by engaging in constitutionally unprotected conduct—unlawful discrimination—rather than protected expression. This is more than free expression in a rude or impolite manner; it is unlawful discrimination.
I agree with the trial court that the Board’s decision “has the potential of signaling to all disgruntled state workers an ‘open season’ on minority [164]subordinates, to unleash venomous epithets under the guise of protected speech. While it is true that, in a proper setting, at the proper time, comments identical to those uttered by [Wallace] might well be deemed protected speech, the Constitution affords no protection for [Wallace] under the circumstances of this case.”
The trial court was correct in recognizing that this particular speech was not protected by the First Amendment.
IV. Disruption
On appeal, CDC cites authority for the proposition that potential, rather than actual, harm suffices (Waters v. Churchill, supra, 511 U.S. 661 [114 S.Ct. 1878, 128 L.Ed.2d 686]),8 but CDC does not identify any “potential” disruption. Nevertheless, I agree with the trial court that the Board’s decision “has the potential of signaling to all disgruntled state workers an ‘open season’ on minority subordinates, to unlease venomous epithets under the guise of protected speech.”
Waters v. Churchill, supra, 511 U.S. 661 cited among other cases Connick v. Myers (1983) 461 U.S. 138, 151-152 [103 S.Ct. 1684, 1692-1693, 75 L.Ed.2d 708, 723], which said: “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate. [A]n employer [need not] allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action. [Fn. omitted.] [The United States Supreme Court] caution[ed] a stronger showing may be necessary if the employee’s speech more substantially involved matters of public concern.”
I do not believe a stronger showing was required in this case. Wallace was not speaking out in order to bring to light any malfeasance or nonfeasance by CDC. He merely disagreed with state policy as it existed at that time. While he was entitled to his opinion, he was not entitled to engage in conduct (verbal or nonverbal) which constituted unlawful discrimination creating a hostile work environment.
[165]Deference to the public employer’s perception of potential disruptiveness is particularly appropriate where, as here, the case involves correctional officers in a state prison, where close working relationships are essential to fulfilling the public responsibilities. Thus, some protected speech might disrupt “the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning.” (Pickering v. Board of Education (1968) 391 U.S. 563, 570 [88 S.Ct. 1731, 1735, 20 L.Ed.2d 811, 818] [schoolteacher did not have close working relationship with school board or superintendent].) The law enforcement profession “impose[s] upon its servants certain ‘ “responsibilities and limitations on freedom of action which do not exist in other callings. [Citations.]” ’ ” (Anderson v. State Personnel Bd. (1987) 194 Cal.App.3d 761, 771 [239 Cal.Rptr. 824].) “[L]aw enforcement agencies [are] essentially paramilitary organizations in which discipline and loyalty are especially important.” (Gray v. County of Tulare, supra, 32 Cal.App.4th at p. 1092 [upholding dismissal of county sheriff’s captain for, among other reasons, making statements in newspaper alleging that newly elected sheriff was misusing resources and prerogatives of his office to punish his political enemies within the department].)
Moreover, actual disruption was shown in this case.
The Board found there was no actual disruption, stating: “The discussion . . . took place in privacy. There were no inmates or other officers around at the time that the discussion took place. [Wallace] made it clear that he was expressing his own opinion when he made his remarks to [Picone] and made no pretense that he was discussing the matter in his supervisory capacity or as a spokesperson for the Department. Indeed, since the entire thrust of [Wallace’s] remarks was to criticize departmental policy in such cases, there was little danger that [Picone] could have misconstrued the private nature of [Wallace’s] views. Given these facts, it is unlikely that [Wallace’s] remarks, even if disseminated, would have discredited the agency in any fashion since they were merely his private expression of his opinions.”
I believe the Board applied the wrong standard.
Thus, the balancing of employee versus employer interests includes as pertinent considerations “whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with [166]the regular operation of the enterprise.” (Rankin v. McPherson, supra, 483 U.S. at p. 388 [107 S.Ct. at p. 2899, 97 L.Ed.2d at p. 327].)
Wallace’s statements had a detrimental impact on close working relationships for which personal loyalty and confidence were necessary. Thus, the Board (while finding no “injury” to Picone), found Picone was frightened and upset by the incident with Wallace. The Board also apparently found a cause and effect relationship between the incident and Picone’s departure from the workplace, because the Board said: “Following the incident with [Wallace], [Picone] asked for a job change. When the job change was denied, she decided that she wanted to transfer from the institution. She subsequently received a transfer to the Northern California Women’s Facility where she was employed at the time of hearing. She testified that she would have reservations about working for [Wallace] as a Sergeant because of his statements to her. She felt that those statements expressed hatred towards her because of her race [sic].”
Though Picone indicated she was bothered by racism throughout the institution, not just from Wallace, the fact remains Wallace was a substantial contributing factor in her transfer. I am not aware of any authority holding that an employee who disrupts working relationships through unlawful discrimination is immune from discipline if others also contribute to the disruption.9 Nor am I aware of any authority that would compel CDC to show economic detriment to Picone in order to establish workplace disruption.
Here, there was clearly a disruption of close working relationships, caused by Wallace. This breakdown was particularly important because of the nature of their jobs as correctional officers in a prison. In this quasi-military environment, employees may have to depend on each other for their safety.
Although the majority say CDC on appeal does not attribute any harm to CDC from Wallace’s comments (maj. opn., ante, at p. 148), CDC does argue Wallace’s conduct caused a disruption in Picone’s career with CDC and caused her to obtain a transfer. This was a disruption not only for Picone, but [167]for CDC as well, because the employer’s interests include harmony among coworkers.10
I would hold the trial court got it right. Wallace’s verbal and nonverbal conduct, considered together, constituted unlawful discrimination unprotected by the First Amendment. I would therefore affirm the trial court’s decision.
Government Code section 19572 provides in part: “Each of the following constitutes cause for discipline of an employee . . . HQ . . . HD (w) Unlawful discrimination, including harassment, on the basis of race, religious creed, color, national origin, ancestry, disability, marital status, sex, or age, against the public or other employees while acting in the capacity of a state employee.”
The Board’s exercise of discretion must be upheld unless it has been abused. (Nightingale v. State Personnel Board (1972) 7 Cal.3d 507, 515 [102 Cal.Rptr. 758, 498 P.2d 1006].) With respect to the question whether the administrative agency abused its discretion, we conduct de novo review and do not defer to the trial court’s decision. (Cummings v. Civil Service Com. (1995) 40 Cal.App.4th 1643, 1652 [47 Cal.Rptr.2d 775].) The Board’s factual findings are reviewed under the substantial evidence test. (Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 217, fn. 31 [124 Cal.Rptr. 14, 539 P.2d 774].)
As Wallace notes, he was not separately charged with misconduct in criticizing Picone to others in the workplace. However, the notice of adverse action did make reference to Wallace’s prior criticism of Picone as a factor leading up to the confrontation between Wallace and Picone.
Although Wallace contends there was no evidence of gender harassment, the evidence showed Wallace said the White males were tired of getting passed over, and Wallace was told by his superiors that he could not get the favorable assignment he requested because CDC wanted to place minority females in those positions to increase their visibility and demonstrate CDC’s commitment to affirmative action.
The majority and the Board treat vulgar, profane language as “accompanying conduct” rather than speech.
Although CDC does not argue the secondary effects doctrine, I believe its argument that Wallace engaged in unlawful discrimination fits within the secondary effects doctrine as a matter of law.
This court held in Hosford v. State Personnel Bd. (1977) 74 Cal.App.3d 302 [141 Cal.Rptr. 354], that a highway patrol officer’s dismissal for insubordinate utterances to his superiors under Government Code section 19572 did not violate his free speech rights. We said the exercise of First Amendment freedoms could be regulated by general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, when a proper governmental interest was served thereby. (74 Cal.App.3d at p. 306.) “[T]he highway patrol’s interest in developing discipline, esprit de corps, and good morale among its members far outweighs any legitimate interest which [the employee] could assert in undermining those efforts with unsolicited, disparaging remarks to or about his commanding officers in the course of duty.” (Ibid.) Such content-neutral regulations are acceptable “so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.” (Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41, 47 [106 S.Ct. 925, 928, 89 L.Ed.2d 29, 37] [upheld zoning ordinance prohibiting adult motion picture theaters
[162]from locating near residential zones, churches, parks or schools; ordinance was aimed at secondary effect of urban blight, not content of films]; but cf. Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372 [259 Cal.Rptr. 918] [no basis for city’s assertion that adult newsracks (as opposed to adult bookstores or theaters) cause urban blight].)
Wallace suggests Waters is unimportant because there was no majority opinion but only a plurality opinion. However, the concurring and dissenting opinions did not dispute whether potential disruptiveness sufficed. The point of contention related to whether an employer should have to conduct an investigation to determine what the employee said. Wallace also argues Waters is distinguishable because it concerned an employee at will rather than one with civil service tenure. However, Waters did not limit its discussion to at-will employees.
Note this is not a case where the disruption is caused by the employer’s misconduct, and the employer tries to punish an employee who contributes to the disruption by speaking out in protest or by participating in the disruption caused by the employer. Nor is this a case where a disruption is caused by an employer’s reaction to an employee’s speech. “Public employers cannot rely on disruption which they have instigated or exacerbated to outweigh an employee’s first amendment rights.” (Chico Police Officers’ Assn. v. City of Chico (1991) 232 Cal.App.3d 635, 651 [283 Cal.Rptr. 610].) Although Wallace was reacting to CDC’s affirmative action policy, I do not view the disruption as having been instigated by CDC.
Wallace cites cases where public employees’ speech regarding discrimination was held to be protected speech, but in those cases the employee was not engaging in discrimination but was accusing the employer of discrimination.
One such case, Givhan v. Western Consol. School Dist., supra, 439 U.S. 410, 414 [99 S.Ct. 693, 696, 58 L.Ed.2d 619, 623], is cited by Wallace for the proposition that comments expressed in private have less chance of disrupting the workplace. However, what Givhan said was that where a public employee personally confronts a superior rather than speaking publicly, the employer’s institutional efficiency may be threatened not only by the content of the message, but also the manner, time and place in which it is delivered. (Id. at p. 415, fii. 4 [99 S.Ct. at p. 696, 58 L.Ed.2d at p. 624].) This does not help Wallace. I thus disagree with Southern Cal. Rapid Transit Dist. v. Superior Court (1994) 30 Cal.App.4th 713, 729 [36 Cal.Rptr.2d 665], which (as noted by Wallace) said Givhan recognized the concern for disruptive speech is far less where the employee speaks privately rather than publicly. On the other hand, Rankin v. McPherson, supra, 483 U.S. at pages 388, footnote 13, 389 [107 S.Ct. at page 2899, 97 L.Ed.2d at page 327] indicated a purely private statement on a matter of public concern will rarely justify discharge of a public employee. There, one worker commented to a coworker (her boyfriend) about a news report of a presidential assassination attempt, stating she hoped the perpetrators would be successful if they tried again. Certainly, a private comment to one other person may be less likely to disrupt a workplace than a comment made to a large group. However, Givhan teaches the context is particularly important where the comment is made in private. Wallace’s venomous attack on Picone is in no way comparable to the offhand chitchat in Rankin.