Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C05-02452
Sepulveda, J.
Gina A. Chin appeals from summary judgment entered in favor of her employer, California Department of Industrial Relations (DIR), on her complaint alleging causes of action for discrimination based on sex, retaliation, and failure to prevent discrimination, in violation of the Fair Employment Housing Act (FEHA) (Gov. Code, § 12940 et seq.). Chin claims the trial court erroneously determined that her sexual harassment cause of action was barred by the statute of limitations and that her retaliation cause of action failed as a matter of law because there was no triable issue of fact that DIR subjected Chin to an adverse employment action. She also contends the trial court erred in concluding that her failure to prevent discrimination cause of action was not actionable. We affirm.
All further undesignated statutory references are to the Government Code.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. Employment History
Chin has been an employee of DIR in the Division of Occupational Safety and Health (DOSH) for over 16 years. At all relevant times, she has worked in the DOSH district office in Concord. The district office and another DOSH unit, the Process Safety Management (PSM) unit, were located in the same building from October 2002 to June 2006; in June 2006, DOSH moved the district office and the PSM unit to another building. While at the Concord location, PSM was managed by district manager Stephen Saine from December 2, 2002 until his resignation on October 29, 2003. At all relevant times, Chin was supervised by Robert McDowell, the district manager for the DOSH district office.
In March 2001 and again in March 2003, McDowell gave Chin performance evaluations with overall ratings of “Superior.” As McDowell believed Chin’s performance continued to be excellent, he did not give Chin another evaluation after March 2003.
B. Sexual Harassment
Between July 2003 and October 15, 2003, Saine repeatedly made unwelcome sexual advances to Chin by asking her to go out with him and to join him in a hot tub. On one occasion, Saine told Chin that he wanted to bathe her and to “watch her float.” On another occasion, Saine told Chin that he wanted to follow her home and “start a bath.” At one point, Saine told Chin that he had had his “ ‘tubes snipped’ ” and was therefore “safe.”
Chin’s supervisor, McDowell, was out of the office from October 6, 2003 through October 16, 2003. During this time Saine “lurked” around Chin’s work area; he also “peeked” at Chin and followed her back to her desk, where he continued to talk to her. Then on October 15, 2003, Saine came up quickly behind Chin and stood behind her while she talked with a coworker. Later that same day, Chin had a “long talk” with Saine during which she told him that she did not go out with married men. Saine became angry and wanted to know if that meant he could not talk to her. When Chin replied, “maybe so” and put up her hands to stand back, Saine “stormed” into his office and closed the door.
In an October 16, 2003 telephone conversation, Chin spoke with Carla Fritz, a fellow DIR employee, about Saine’s inappropriate behavior and response to her rebuff of his advances. During this conversation, Fritz confided that Saine “had done/said some inappropriate things to her as well and was really out of line,” which prompted Fritz to keep her door closed to avoid him. (Boldface omitted.)
On October 17, 2003, Chin met with McDowell and discussed her concerns about Saine. As Saine left the office that day, he told Chin that “clothing was optional at his house.” Chin did not have any further contact with Saine after October 17, 2003, as he was on vacation the following week and was placed on administrative leave while on vacation. Thereafter, Saine resigned on October 29, 2003.
C. Retaliation
Commencing on October 21, 2003, and continuing thereafter, Chin’s coworkers were rude to her and “persistently harassed” her by shunning her and by engaging in other disruptive conduct, including talking loudly, slamming doors, and not answering their telephones, which caused the calls to roll over to Chin’s phone. Chin believed that her coworkers blamed her for Saine’s departure.
In November 2003, Chin complained about the retaliatory conduct of her coworkers. She complained to McDowell that “members of the PSM staff had made comments to her which implied she was somehow responsible” for Saine’s departure. McDowell responded immediately by meeting with PSM staff and advising them not to speculate about why Saine resigned and not to discuss it amongst themselves; he instructed them to focus on their work. McDowell then told Chin about his instructions to her coworkers.
Approximately five months later, in April 2004, Chin complained to McDowell that she felt threatened by Regina Forcier, a PSM office assistant. Chin also told McDowell that Forcier resented that Saine was forced to resign. The next day, McDowell told Forcier to act professionally toward Chin and not to shun or ignore her. McDowell then met with Chin and told her about his conversation with Forcier. McDowell also advised William Krycia, the regional manager over both the district office and PSM, about Chin’s complaints.
On April 29, 2004, Chin sent an email to Krycia, complaining about Forcier. In this communication, Chin said that McDowell had been very supportive of her, but Forcier’s verbal attacks continued. Chin advised Krycia that Forcier would sometimes say hello and other times she would say nothing or take a “jab of some kind with words.”
On May 6, 2004, Krycia met with Chin to discuss the complaints set forth in her email. He then met with Forcier to discuss Chin’s complaints. He told Forcier that “some employees felt they were being blamed for [] Saine’s departure but that no one should do so because [] Saine’s resignation was voluntary.” Afterward, Krycia met with PSM employees as a group and told them Saine would not be returning and that there should be no further discussions about anyone who participated in the investigation of Saine. On May 11, Lynda Christy, the personnel officer for DOSH, visited Chin to see how she was doing after Krycia’s meetings.
On June 17, 2004, Chin emailed Christy to advise her that Forcier’s behavior had become “very unstable” since Christy’s May 2004 visit. In response, Christy arranged a meeting with Chin on June 21, 2004. At this meeting, Chin said that she had documentation of the incidents, and she would send it to Christy. On June 24, 2004, Chin sent Christy another email, advising that she had “not completed things yet” and that she would be in contact.
Between June 24, 2004 and July 13, 2004, Christy contacted Dan Wightman, DIR’s civil rights officer and asked him to investigate Chin’s complaints. On July 13, 2004, Wightman asked Chin to meet with him about her hostile work environment complaints. On July 15, 2004, Christy followed up with Chin regarding the promised documentation; Chin responded that she was still working on the draft. Sometime later in the month, Chin met with Wightman to discuss her complaints.
On July 30, 2004, Chin met with Christy and submitted a 24-page statement. Chin’s statement referred to events occurring between February 17, 2004 and July 23, 2004, and included complaints about workload distribution at the PSM and district offices, social slights by Forcier, and work habits of other employees. On August 3, 2004, Christy sent Chin an email requesting clarification about certain items in the 24-page statement. Chin did not respond until August 26, 2004, and then did not answer all of the questions posed by Christy.
In or about August 2004, Wightman assigned the investigation of Chin’s complaints to Maria Loera, another civil rights officer. On August 30, 2004, Loera contacted Chin to discuss her complaints; Chin did not provide any additional information but referred Loera back to Wightman. Subsequently, Chin emailed Wightman and Loera, thanking them for their time and indicating that her attorney would be contacting them.
D. Administrative Complaints
On or about October 4, 2004, Chin submitted a pre-complaint questionnaire to the California Department of Fair Employment and Housing (DFEH), which referenced the following: 1) Chin was sexually harassed by Saine from July 2003 through October 17, 2003; 2) she was subjected to retaliation starting in November 2003 and continuing to date; and 3) DIR “fail[ed] to remedy” the discrimination starting in November 2003 and continuing to date.
On October 13, 2004, Chin signed and filed two administrative complaints, which had been prepared by the DFEH. In case No. E200405M0627-00-sb (complaint No. one), Chin alleged that she had been sexually harassed by Saine from July 2003 to October 17, 2003. In complaint No. one, Chin asked the DFEH to issue an immediate right-to-sue letter. One day later, Chin received a notice of case closure, also known as right-to-sue letter, advising her that her sexual harassment complaint was being closed and she had one year from October 14, 2004 to file a civil complaint.
Chin states that three complaints were filed. However, the third complaint is not part of the record on appeal.
In case No. E200405M0633-00-rse (complaint No. two), Chin alleged retaliation for reporting the sexual harassment. Complaint No. two referenced the time period from October 21, 2003 to September 2004, and specifically mentioned the retaliatory conduct in response to Chin’s report of sexual harassment. In complaint No. two, Chin did not request an immediate right-to-sue letter. Rather, she requested one nearly a year later on August 22, 2005. Thereafter, DFEH sent Chin a right-to-sue letter on September 7, 2005.
E. Civil Proceedings
On November 18, 2005, Chin filed a civil complaint, alleging, among other things, causes of action for discrimination based on sex (first cause of action), retaliation (third cause of action), and failure to prevent discrimination (second cause of action), in violation of the FEHA. Chin relied solely on her second administrative complaint and the September 7, 2005 right-to-sue letter in pleading her exhaustion of remedies.
Chin also asserted a fourth cause of action for violation of Article 1, section 8 of the California Constitution. The fourth cause of action is not a subject of the instant appeal.
DIR moved for summary judgment on the following grounds: 1) the first cause of action was time-barred; 2) the third cause of action failed as a matter of law because Chin had not established a triable issue of material fact that she was subjected to an adverse employment action; and 3) the second cause of action was not actionable due to the failure of the first and third causes of action and because Chin failed to exhaust her administrative remedies. The trial court granted summary judgment in favor of DIR.
The instant appeal followed.
II.
DISCUSSION
A. Standard of Review
“Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1034-1035.) ‘ “We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.” ’ (Id. at p. 1035.) We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. [Citation.]” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037 (Yanowitz).) “We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.]” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805.)
Moreover, it is the trial court’s decision that we review. “ ‘[W]e are not bound by the trial court’s stated reasons or rationales. [Citation.]’ (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1101.)... [T]o defeat the motion for summary judgment, the plaintiff must show ‘ “specific facts,” ’ and cannot rely upon the allegations of the pleadings. [Citations.]” (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 805.)
B. Sexual Harassment
There are two limitations provisions that together fix the time frame for bringing suit under the FEHA. First, a plaintiff must timely seek administrative relief by filing an administrative complaint within one year of the alleged unlawful conduct. (§ 12960.) Second, the plaintiff must timely pursue a civil lawsuit. Under section 12965, subdivision (b), a civil action must be filed within one year of the right-to-sue letter.
Here, it is undisputed that on October 13, 2004, Chin filed complaint No. one with the DFEH, alleging that she had been sexually harassed by Saine. Complaint No. one referenced that Chin had requested an immediate right-to-sue letter. The right-to-sue letter was issued the next day on October 14, 2004, which advised Chin that a civil suit needed to be filed within one year. Chin waited more than a year to file the underlying action.
Chin asserts that it is disputed that she requested a right-to-sue letter with respect to complaint No. one. According to Chin, she requested a right-to-sue letter only for complaint No. two. However, the record belies this claim. Specifically, Chin signed and filed complaint No. one on October 13, 2004, which unambiguously stated that a right-to-sue letter was requested. Complaint No. two, which Chin signed and filed on the same day as complaint No. one, did not contain a request for a right-to-sue letter.
Chin argues it was immaterial that the period specified in section 12965, subdivision (b) had run, because the DFEH issued a second right-to-sue letter with respect to her subsequent administrative complaint, and her civil complaint was filed within a year of the second right-to-sue letter. Chin argues that complaint No. two encompassed her sexual harassment claims because she checked the box for “sex.” However, “ ‘[t]he selection of the type of discrimination alleged, i.e. the selection of which box to check, is in reality nothing more than the attachment of a legal conclusion to the facts alleged.’ ” (Sandhu v. Lockheed Missiles & Space Company (1994) 26 Cal.App.4th 846, 858-859.) Rather, the factual statement is the “ ‘crucial element’ ” of the charge. (Id. at p. 858.) Here, the factual statement for complaint No. two references that Chin had been subjected to retaliation since November 2003 because on October 17, 2003, she reported that she had been sexually harassed by Saine. Chin further stated that beginning on or about October 21, 2003 through September 2004, she was “confronted” by Forcier about her “involvement with the sexual harassment complaint against [] Saine.”
Although complaint No. two references the sexual harassment by Saine, it is clear that it is limited to Chin’s retaliation claims. Indeed, complaint No. two, unlike complaint No. one, does not set forth facts specific to the sexual harassment claim or identify the time frame of the alleged misconduct. Rather, the reference to sexual harassment in complaint No. two is properly viewed as a separate discriminatory act that is the triggering event for the subsequent retaliation. Accordingly, we conclude the scope of complaint No. two was limited to Chin’s retaliation claim.
B.K.B. v. Maui Police Department (9th Cir. 2002) 276 F.3d 1091 (B.K.B.), relied on by Chin, does not compel a contrary conclusion. In B.K.B. the plaintiff completed a pre-complaint questionnaire in which she alleged she suffered racial and sexual harassment. (Id. at p. 1095.) However, when the agency typed up the form, it failed to include sexual harassment as a basis for the charge. (Id. at pp. 1101-03.) The court concluded that, based on those facts, the plaintiff had exhausted her administrative remedies as to her sexual harassment claim. (Id. at p. 1103.) Here, in contrast, the DFEH did not omit the sexual harassment allegation. Rather, the DFEH prepared two separate complaints based on separate discriminatory acts that occurred during different time frames. Moreover, Chin fails to recognize that her sexual harassment claims are barred not because she failed to exhaust her administrative remedies but because she allowed the one-year statute of limitations to lapse. Accordingly, B.K.B. is inapposite.
In a further attempt to avoid the statute of limitations, Chin invokes the rule that a civil complaint may embrace discrimination that is like or reasonably related to the allegations in the administrative complaint. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1614.) This rule is based upon the view that the purpose of an administrative complaint is to trigger the investigatory and conciliatory procedures of the DFEH, rather than to set up an unnecessary procedural barrier to the pursuit of a claim. (Id. at p. 1615.) Accordingly, what has been described as the leading approach to the application of this rule is to consider the scope of the administrative investigation that can be reasonably expected to grow out of the specific acts charged. (Ibid., citing Sanchez v. StandardBrands, Inc. (5th Cir. 1970) 431 F.2d 455, 466.)
Chin also attempts to avoid the statute of limitations by arguing that the DFEH’s simultaneous preparation of multiple complaints creates a triable issue of fact regarding whether her sexual harassment claim was solely limited to complaint No. one. We disagree. Complaint No. two clearly pertains to the conduct occurring after she reported the sexual harassment by Saine.
Despite Chin’s claims to the contrary, the “like or reasonably related” rule has no application in this case. Here, Chin’s sexual harassment claim is not untimely because she failed to exhaust her administrative remedies but because she allowed the one-year statute of limitations to lapse. Further, the “like or reasonably related” rule cannot circumvent the statute of limitations by resurrecting Chin’s otherwise untimely claim for sexual harassment by the mere fact that an investigation of her retaliation claim could have revealed facts about the sexual harassment. (See, e.g., Spears v. Missouri Dept. of Corrections & Human Resources (8th Cir. 2000) 210 F.3d 850, 853-854 [fact that plaintiff’s second Equal Employment Commission (EEOC) charge reiterated retaliatory acts alleged in first EEOC charge upon which she failed to timely bring suit did not obviate statutory bar]; Williams v. Little Rock Mun. Water Works (8th Cir. 1994) 21 F.3d 218, 222 [plaintiff who timely filed suit on second EEOC charge barred from asserting claims based on events that formed basis of prior EEOC charge not timely asserted]; Soso Liang Lo v. Pan Am. World Airways, Inc. (2nd Cir. 1986) 787 F.2d 827, 828 [where plaintiff failed to bring suit in timely manner after receiving right-to-sue letter on first EEOC charge, subsequent charge and right-to-sue letter did not revive claims asserted in first charge].)
We conclude Chin’s reference to the sexual harassment by Saine in complaint No. two did not revive this lapsed claim for purposes of section 12965, subdivision (b).
Accordingly, the trial court properly determined that Chin’s first cause of action for sexual harassment was time-barred.
Chin argues that the trial court erroneously relied on Brown v. Continental Can Co. (9th Cir. 1985) 765 F.2d 810 in determining that her sexual harassment cause of action was time-barred. Whether or not the trial court’s reliance on this case was “misplaced” as Chin suggests, we review the soundness of the court’s ruling, not its reasoning. (Horn v. Cushman & Wakefield Western, Inc., supra, 72 Cal.App.4th at p. 805.)
C. Retaliation
Section 12940, subdivision (h) is the statutory basis for a retaliation cause of action under the FEHA. (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1161-1162; Yanowitz, supra, 36 Cal.4th at p. 1035.) Section 12940, subdivision (h) states in part: “It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [¶]... [¶]... For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”
To prove her retaliation claim, Chin was required to show DIR subjected her to an “ ‘adverse employment action.’ ” (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 510-511; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475-476.) In Yanowitz, supra, 36 Cal.4th 1028, our Supreme Court considered how the term “adverse employment action” should be defined for purposes of a FEHA retaliation claim. (Id. at pp. 1035-1036.) After discussing various standards, the court concluded that “the proper standard for defining an adverse employment action is the ‘materiality’ test, a standard that requires an employer’s adverse action to materially affect the terms and conditions of employment [citation]... [and] in determining whether an employee has been subjected to [adverse employment action], it is appropriate to consider the totality of the circumstances....” (Id. at p. 1036; accord, Jones v. Lodge at Torrey Pines Partnership, supra, 42 Cal.4th at p. 1168.) Whether there has been an adverse employment action is a fact and context specific inquiry: “Retaliation claims are inherently fact-specific, and the impact of an employer's action in a particular case must be evaluated in context. Accordingly, although an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Yanowitz, supra, at p. 1052.)
Consistent with the “materiality” test, Yanowitz instructs that “[m]inor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of” the FEHA. (Yanowitz, supra, 32 Cal.4th at pp. 1054-1055.)
“[I]t also is true that in many cases, the employee is affected by a series of employment actions, at least some of which might not, in and of themselves, constitute a material change in the terms or conditions of employment. In such cases, it is appropriate to consider the plaintiff's allegations collectively under a totality of the circumstances approach. There ‘is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.’ [Citation.]” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 387-388, quoting Yanowitz, supra, 36 Cal.4th at p. 1055.)
The plaintiff in Yanowitz alleged a pattern of systematic retaliation that included unwarranted negative performance evaluations; L’Oreal’s refusal to allow the plaintiff to respond to the allegedly unwarranted criticism; unwarranted criticism from plaintiff’s supervisor in the presence of plaintiff’s associates and other employees and a “ ‘humiliating’ ” public reprobation by her supervisor’s supervisor; a refusal of plaintiff’s request to provide necessary resources and assistance to an employee, thereby fueling employee resentment for which plaintiff was chastised in her performance reviews; and plaintiff’s supervisor’s solicitation of negative feedback about plaintiff from her staff. (Yanowitz, supra, 36 Cal.4th at p. 1055.)
The Yanowitz court concluded that the actions by the plaintiff’s supervisors “constituted more than mere inconveniences or insignificant changes in job responsibilities.” (Yanowitz, supra, 36 Cal.4th at p. 1060.) Rather, the “[m]onths of unwarranted and public criticism of a previously honored employee, an implied threat of termination, contacts with subordinates that only could have the effect of undermining a manager’s effectiveness, and new regulation of the manner in which the manager oversaw her territory” was more than an “inconvenience” to plaintiff, as they “placed her career in jeopardy.” (Ibid.)
In Yanowitz, supra, 36 Cal.4th 1028, our Supreme Court cited numerous examples of employment actions that were not sufficiently adverse: “Torres v. Pisano [2nd. Cir. 1997] 116 F.3d [625] 640 (fact that acts left employee feeling ‘frightened’ and ‘humiliated’ failed to establish that employee suffered an adverse employment action); Ruggieri v. Harrington (E.D.N.Y. 2001) 146 F.Supp.2d 202, 216 (circumstance that plaintiff was embarrassed by employer’s actions inadequate to demonstrate adverse employment action); Flaherty v. Gas Research Inst. (7th Cir. 1994) 31 F.3d 451, 457 (plaintiff’s ‘bruised ego’ as a result of transfer that plaintiff found ‘personally humiliating’ insufficient to constitute adverse employment action).” (Id. at p. 1054, fn. 13.)
Chin cannot establish that she was subjected to an adverse employment action. She points to numerous instances in which “PSM staff and Forcier were disruptive, rude, shunned, isolated and publicly criticized [Chin], talked loudly about Saine’s departure, slammed doors, [and] imposed work on [Chin]....” Chin also states that her workload was “increased and excessive.” She was labeled a “troublemaker,” as well as being “untrustworthy,” because she had previously filed a sexual harassment complaint and was deemed to be on “her high horse again.”
The conduct at issue here differs greatly in degree from the conduct at issue in Yanowitz. Unlike the plaintiff in Yanowitz, Chin continued to be viewed as an “excellent” employee even after she reported the sexual harassment by Saine. Her claims of an “increased and excessive” workload notwithstanding, there were was no implied threat of termination or other conduct that could be characterized as placing her career “in jeopardy.” The conduct about which Chin complains is more aptly described as an alleged lack of civility in the workplace. This, however, does not constitute adverse employment action upon which a retaliation claim can be based. (See Yanowitz, supra, 36 Cal.4th at pp. 1053-1054.) Moreover, absent facts that DIR instructed Chin’s coworkers to avoid or shun her in retaliation for asserting a harassment complaint, there is no actionable retaliation. “Because an employer cannot force employees to socialize with one another, ostracism suffered at the hands of coworkers cannot constitute an adverse employment action.” (Brooks v. City of SanMateo (9th Cir. 2000) 229 F.3d 917, 929; see also Strother v. Southern California Permanente Medical Group (9th Cir. 1996) 79 F.3d 859, 869 [mere ostracism in the workplace is insufficient to establish an adverse employment action]; Welsh v. Derwinski (1st Cir. 1994) 14 F.3d 85, 86 [recognizing that not every unpleasant matter creates a cause of action].) Indeed, “ ‘[w]ork places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.’ [Citation.]” (Thomas v. Department of Corrections, supra, 77 Cal.App.4th at p. 511.) Here, the complained of behavior, albeit unprofessional at times, resulted in what might be termed “commonplace indignities typical of the workplace” (Yanowitz, supra, 36 Cal.4th at p. 1060), not a violation of a whistle-blower protection statute.
Contrary to Chin’s assertion, there is no evidence that McDowell instructed Chin’s coworkers to shun her. Rather, the record reflects that McDowell attempted to protect Chin from disruptive conduct, by telling coworkers who were talking in her area that she was busy and that “they should to take their conversation elsewhere.” (Italics added.) Indeed, McDowell specifically instructed Forcier to act professionally and not to shun Chin.
After considering the alleged acts of retaliation collectively, we conclude that these acts do not constitute an adverse employment action under the relevant standard, in that they do not materially affect the terms, conditions, or privileges of employment. (See Yanowitz, supra, 36 Cal.4th at p. 1060.) Although the question whether a defendant’s conduct constitutes an adverse employment action is generally a factual one (see id. at p. 1052),this case presents a situation in which we can conclude, as a matter of law, that the conduct is insufficient to amount to an adverse employment action.
In sum, the trial court properly granted summary judgment as to Chin’s third cause of action for retaliation because she cannot establish that she was subjected to an adverse employment action by DIR.
D. Failure to Prevent Discrimination
Chin’s second cause of action against DIR is based on section 12940, subdivision (k), by reason of its alleged failure to take reasonable steps to prevent discrimination and harassment. The trial court granted summary judgment of this cause of action, concluding that it was not actionable due to the summary judgment granted in DIR’s favor regarding Chin’s sexual harassment and retaliation causes of action. The trial court further ruled that Chin failed to exhaust her administrative remedies as to this cause of action.
DIR relies on Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280 (Trujillo) to argue that summary judgment of the sexual harassment and retaliation causes of action precluded Chin’s failure to prevent harassment cause of action. In Trujillo, plaintiffs sued for employment discrimination. (Id. at p. 283.) The jury rendered a verdict, on a special verdict form, finding that no discrimination or harassment had occurred, but also finding defendants liable for compensatory and punitive damages for “failing to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Ibid.) In affirming the trial court’s decision to grant a judgment notwithstanding the verdict, the Trujillo court reasoned that employers should not be liable for the failure to take steps to deal with discrimination that has not, in fact, occurred. (Id. at p. 289.) Trujillo is distinguishable from the instant case. There, a jury made “a specific factual finding that no... discrimination or harassment actually occurred at the plaintiffs’ workplace.” (Ibid.)
Here, in contrast, Chin’s claims were disposed of on summary judgment. Nevertheless, we find Chin’s failure to establish an actionable retaliation claim is fatal to her claim that her failure to prevent discrimination cause of action can proceed. As discussed, Chin has failed to present any triable issues of fact that she suffered an adverse employment action. In other words, Chin’s retaliation claim fails as a matter of law. Accordingly, DIR cannot not be liable for the failure to prevent retaliation that has, in fact, not occurred.
However, we reach a different conclusion with respect to Chin’s claim that DIR failed to prevent the sexual harassment. Unlike the retaliation cause of action, there has been no determination on the merits of Chin’s sexual harassment claim. Rather, this cause of action was disposed of because it is untimely. We do not read Trujillo, supra, 63 Cal.App.4th 280 as compelling summary judgment of the second cause of action merely because the first cause of action for sexual harassment is time-barred.
That said, we agree that the second administrative complaint does not encompass the allegations that DIR failed to prevent Chin’s sexual harassment by Saine. “To exhaust his or her administrative remedies as to a particular act made unlawful by [FEHA], the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts. [Citation.]... [I]n the context of [FEHA],... ‘[t]he failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect,’ and thus that failure to exhaust administrative remedies is a ground for a defense summary judgment. [Citation.]” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724.)
Here, the second administrative complaint provided the following information: 1) on or about October 17, 2003, Chin reported that she had been sexually harassed by Saine; 2) on or about October 21, 2003, continuing through September 2004, Chin was confronted by Forcier and subjected to a hostile work environment, which Chin reported to McDowell; 3) no action was taken to protect Chin from the “continual hostile action” and DIR “failed to prevent further harassment.”
Chin argues that there are triable issues of fact that her second administrative complaint contains allegations that DIR failed to prevent both sexual harassment and retaliation in violation of section 12940, subdivision (k). We disagree. Even if the second administrative complaint can reasonably be read to encompass the failure to prevent the retaliation, it gave no notice to DIR that it had failed to prevent Chin’s sexual harassment by Saine. Rather, the second administrative complaint relates to Forcier’s conduct, which occurred after the sexual harassment by Saine had ceased. Given these allegations and this timeline, the most reasonable interpretation of the second administrative complaint is that it is limited to DIR’s alleged failure to prevent the “hostile action” and “harassment” by Chin’s coworkers.
Thus, the trial court did not err in granting summary judgment of Chin’s second cause of action for failure to prevent discrimination and harassment.
III. DISPOSITION
The judgment is affirmed. DIR is entitled to its costs on appeal.
We concur:, Ruvolo, P.J., Reardon, J.