Opinion
D069099
02-02-2017
CELENA RAMOS, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Respondent.
Michael J. F. Smith and John L. Migliazzo for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Chris A. Knudsen, Assistant Attorney General, Celine M. Cooper and Alice Q. Robertson, Deputy Attorneys General, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00006033-CU-OE-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Affirmed. Michael J. F. Smith and John L. Migliazzo for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Chris A. Knudsen, Assistant Attorney General, Celine M. Cooper and Alice Q. Robertson, Deputy Attorneys General, for Defendant and Respondent.
There is no dispute in the record in this employment discrimination case that the employer, defendant California Department of Corrections and Rehabilitation, (Corrections), was not able to grant plaintiff Celena Ramos's requests to be transferred from the facility where she had been working as a corrections officer and was on approved medical leave, to a corrections officer position at another facility. There were no corrections officer positions available at the facility where Ramos wanted to work at the time she made her requests. There also is no dispute that, even if a position had been available when Ramos applied for a transfer, she would not have been able to perform the duties of a corrections officer because of the severe depression and anxiety from which she was suffering. Finally, there is no dispute that, when Ramos's physician released her from her medical leave, Corrections transferred Ramos to the facility she requested but that because Ramos's anxiety prevented her from fulfilling her duties as a corrections officer, at her request she was assigned to a civilian position at the facility. Given these circumstances, Ramos's claims against Corrections based on its failure to initially grant her requests for a transfer fail as a matter of law. As we discuss below, her alternate theories of liability also fail as a matter of law. Accordingly, we affirm the judgment of the trial court dismissing Ramos's complaint following its order granting Corrections's motion for summary judgment.
FACTUAL AND PROCEDURAL SUMMARY
1. 2006-2009
Ramos began her career as a correctional officer in 2006 at the Richard J. Donovan Correctional Facility (Donovan) in Otay Mesa, California. In 2009, she began working in the Donovan Medical Transportation Unit (Transportation). Correctional officers in Transportation work with partners moving inmates in the correctional system to and from medical appointments and to and from correctional institutions when medically necessary. When a transportation assignment requires an extended trip, either because of the time or distance involved, officers are required to spend the night in lodging on the road and return to Donovan the following day. Partner assignments are made on a rotating and random basis.
2. 2011
A. Sexual Advance/Harassment
On August 3, 2011, Ramos was on an overnight assignment with another correctional officer, Ramon Fernandez. They each had a separate hotel room; however, after an evening of drinking they returned to Fernandez's room and Ramos used the bathroom in Fernandez's room. When Ramos emerged from the bathroom, Fernandez was standing in the center of his hotel room wearing only his socks.
About two weeks later, one of Ramos's supervisors, Sergeant Anthony Pasquariello, asked Ramos about the incident because he had heard rumors about it. According to Pasquariello, Ramos made light of it and joked with him about it, and, on August 23, Ramos worked again with Fernandez. According to Ramos, on the other hand, Pasquariello made light of the incident and suggested to her that he would like to have sex with her as well.
In any event, at the end of August, Ramos asked Pasquariello not to assign her again for any overnight trips with Fernandez. At that point, Pasquariello realized the hotel incident was more serious than he had initially believed.
On the same day Ramos made her complaint to Pasquariello, an associate warden was informed about the incident and instructed subordinates to reassign Fernandez to a work area away from Ramos; they did so immediately, and Ramos and Fernandez did not work together again.
An associate warden also advised Ramos that Corrections would be investigating the incident; although Ramos told the associate warden she did not want Corrections to conduct an investigation, shortly thereafter Ramos lodged a complaint about the incident with Corrections.
Pasquariello conducted an investigation and, according to Ramos, sought derogatory information about her from other corrections officers.
Ramos was off work between September 1 and September 7; when she returned to work on September 8, she had taken a prescription anti-anxiety medication, alprazolam, which is often marketed under the trade name Xanax. Because of the medication, Ramos experienced drowsiness while driving on an assignment with another officer. Following that incident, Ramos was temporarily relieved of duties that required her to either drive or carry a weapon.
A few days later, Ramos's dizziness had subsided, and, at her request, she was transferred out of Transportation and given an assignment in an observation unit.
B. Medical Leave Commences
At the end of September 2011, Ramos went on medical leave because she continued to suffer from anxiety and depression. According to Ramos, she was suffering from anxiety and depression because, after making a complaint about Fernandez, other corrections officer shunned her and she feared for her safety in the event she needed their assistance in the dangerous prison environment where she worked. Her medical leave lasted until August 2013, when her physician released her to return to work as a corrections officer.
While on medical leave, in December 2011, Ramos moved to Hanford, California, which is located in the Central Valley. Shortly after Ramos moved to the Central Valley, Ramos asked Corrections to transfer her to its substance abuse treatment facility located in nearby Corcoran, California. Officials at Donovan denied her request.
3. 2012
Although still on medical leave throughout 2012, Ramos made further requests to be transferred to Corcoran. Corrections's officials in Sacramento did not approve the transfer requests because, according to a later declaration, there were no positions available at Corcoran at that time.
4. 2013
As we have noted, in August 2013, Ramos's physician released her to return to work as a corrections officer. Shortly thereafter, Corrections approved Ramos's transfer to its Corcoran facility because a position was available. However, as a matter of officer safety, Corrections requires that corrections officers wear "stab vests" at all times while on duty. When Ramos returned to work in 2013 she was unable to wear a "stab vest" because it triggered her anxiety. She requested and Corrections approved, a transfer to a lower paying civilian administrative position at Corcoran.
5. Litigation
Although Ramos was and at all relevant times thereafter continued to be employed by Corrections at Corcoran, in March 2014 she filed a discrimination complaint against the department under the Fair Employment and Housing Act, Government Code section 12940 et seq. (FEHA). She alleged Fernandez's conduct gave rise to a claim for sexual harassment, claims of retaliation for reporting Fernandez's conduct, a claim for failure to accommodate her medical condition, and a claim for failure to engage in an interactive process. (See Gov. Code, § 12940, subd. (h).)
Corrections moved for summary judgment and summary adjudication. The trial court found in Corrections's favor on all of Ramos's claims, except one. Ramos had alleged a separate third cause of action alleging that Corrections had retaliated against her because she had taken a medical leave; the trial court was unwilling to find in Corrections's favor on that claim as a matter of law. Ramos filed a timely notice of appeal. However, in order to obtain an appealable judgment with respect to the bulk of her claims, Ramos waived her right to pursue her third cause of action, and at her request, we modified the trial court's judgment to reflect that the third cause of action was dismissed with prejudice.
DISCUSSION
On appeal, Ramos does not challenge the trial court's determination that her sexual harassment claim fails as a matter of law. Because she only alleged a single incident and because Corrections officials took prompt steps to prevent it from occurring again, there is no basis in the record upon which to make the department responsible for Fernandez's conduct. (See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.) Nonetheless on appeal, Ramos does argue that she was subject to retaliation for making a complaint about Fernandez, that Corrections failed to accommodate her disability and failed to engage in a required interactive process. As we discuss more fully below, these claims also fail as a matter of law.
I
The standard of review on appeal from a judgment entered on an order granting summary judgment is familiar. "In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment." (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61 Cal.App.4th 1073, 1079.) Thus, on appeal we determine whether the party opposing the motion has shown the existence of a triable, material factual issue. (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 832.) We "liberally construe plaintiffs' evidentiary submissions and strictly scrutinize defendants' own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs' favor." (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) However, in order to prevail, the party opposing the motion must set forth "specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(1).)
The plaintiff's burden in defeating a motion for summary judgment is only a burden of production and only a burden of making a prima facie showing of a triable issue of fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at p. 851.)
Importantly, the plaintiff can defeat a defense motion for summary judgment by showing "the defense evidence itself permits conflicting inferences as to the existence of the specified fact." (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756-757.) "The dispositive question in all cases is whether the evidence before the court, viewed as a whole, permits only a finding favorable to the defendant with respect to one or more necessary elements of the plaintiff's claims—that is, whether it negates an element of the claim 'as a matter of law.' [Citation.]" (Id. at p. 757.)
II
In order to establish a retaliation claim, an employee must show that he or she a) engaged in some protected activity; b) thereafter his or her employer subjected him or her to some adverse employment action; and c) the adverse action was taken as a result of the protected activity. (See Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 356; Gov. Code, § 12940, subd. (h)). An employee establishes a prima facie case of retaliation by showing that he or she engaged in protected activity and that thereafter he or she was subject to some adverse employment action; those circumstances are sufficient to raise an inference of retaliation. (Morgan v. Regents (2000) 88 Cal.App.4th 52, 68.) An employer may rebut that inference of retaliation by presenting evidence of a legitimate nonretaliatory reason for its action. (See Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 357; Morgan, at p. 68.)
Corrections does not dispute that in making a complaint about Fernandez, Ramos was engaged in protected activity. Nonetheless Corrections argues that to the extent Ramos was thereafter subjected to any adverse employment action, the action was taken for a legitimate nonretaliatory reason. We agree with Corrections.
A. Adverse Employment Actions
In opposing the motion for summary judgment, Ramos argued that following her complaint about Fernandez she felt shunned by other officers at Donovan, that at Donovan she was temporarily removed from Transportation, that she was then moved to an isolated observation tower at Donovan, and that Corrections's investigation of her complaint against Fernandez injured her. Significantly, Ramos also argued that in failing to approve her repeated requests for a transfer to Corcoran, Corrections acted in retaliation for her complaint about Fernandez. However, the evidence she offered in support of these claims did not establish that any of them amounted to an adverse employment action.
1. Legal Principles
As Corrections points out, an adverse employment action is one "that materially affects the terms, conditions, or privileges of employment," and "has a detrimental and substantial effect on the plaintiff's employment." (See McRae v. Department of Corrections and Rehabilitation (2006) 142 Cal.App.4th 377, 386-387 (McRae).) " 'A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient.' [Citation.] ' "[W]orkplaces 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.] If every minor change in working conditions or trivial action were a materially adverse action then any "action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." [Citation.]' [Citation.]
" 'Requiring an employee to prove a substantial adverse job effect "guards against both 'judicial micromanagement of business practices' [citation] and frivolous suits over insignificant slights." [Citation.] Absent this threshold showing, courts will be thrust into the role of personnel officers, becoming entangled in every conceivable form of employee job dissatisfaction. While the Legislature was understandably concerned with the chilling effect of employer retaliatory actions and mandated that FEHA provisions be interpreted broadly to prevent unlawful discrimination, it could not have intended to provide employees a remedy for any possible slight resulting from the filing of a discrimination complaint.' [Citation.] In addition, while the employee and the public have a significant interest in preventing discrimination or retaliation for engaging in protected activity, those are not the only interests at stake. The employer and the public have a legitimate interest in efficient, cost-effective, and high-quality work. Employers need to be able to manage employees without fear that routine employment decisions, or attempts at improving employee performance, will lead to litigation. Employees themselves have an interest in learning if their work habits are substandard, particularly if they wish to advance in their professions. 'On the one hand, we worry that employers will be paralyzed into inaction once an employee has lodged a complaint . . . , making such a complaint tantamount to a "get out of jail free" card for employees engaged in job misconduct. On the other hand, we are concerned about the chilling effect on employee complaints resulting from an employer's retaliatory actions.' [Citation.]." (McRae, supra, 142 Cal.App.4th at pp. 386-387.)
In McRae, a prison doctor argued her transfer to another Corrections facility with similar duties was an adverse employment action that was taken in retaliation for discrimination claims she had filed. In rejecting her contention that the transfer amounted to an adverse employment action, the court stated: "A transfer can be an adverse employment action when it results in substantial and tangible harm. A transfer is not an adverse employment action when it is into a comparable position that does not result in substantial and tangible harm. [Citations.] A transfer is not an adverse action simply because the plaintiff finds it to be 'personally humiliating.' [Citations.] The District of Columbia Circuit, in Brown v. Brody (D.C. Cir.1999) 339 U.S. App.D.C. 233 , after surveying the relevant case law, stated a formulation that reflects our own view: '[A] plaintiff who is made to undertake or who is denied a lateral transfer—that is, one in which she suffers no diminution in pay or benefits—does not suffer an actionable injury unless there are some other materially adverse consequences . . . such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm. Mere idiosyncrasies of personal preference are not sufficient to state an injury.' (Id. at p. 457.)
"The transfer of Dr. McRae from CMF to Solano Prison did not entail a demotion, reduction in pay or a loss of benefits. It did not involve a change in status or a less distinguished title. There is no evidence that it involved any significant change in job responsibilities, or, except for on-call duty, in work hours or commute time." (McRae, supra, 142 Cal.App.4th at p. 393.)
2. Analysis
Between the time Ramos complained to Pasquariello at the end of August 2011, and the day her medical leave commenced on October 1, 2011, Corrections commenced investigations of Fernandez's conduct, Ramos felt shunned by other correctional officers, she was temporarily taken off Transportation duty, and then transferred, at her request, out of Transportation. None of these actions constituted a material adverse action by Corrections. They did not entail a demotion, reduction in pay or loss of benefits.
A somewhat more complicated issue is presented by Pasquariello's initial inquiry about the Fernandez incident, his conclusion that it did not need further investigation, his own lewd and mocking remarks to Ramos, and his later effort to discredit Ramos. Plainly Pasquariello's behavior and his effort to collect derogatory statements about Ramos, would be probative with respect to Corrections's responsibility for the overall environment at Donovan and therefore the department's potential responsibility for Fernandez's conduct in exposing himself to Ramos. However, as we have noted, on appeal Ramos does not challenge the trial court's dismissal of her sexual harassment claim. The issue on appeal is whether, in addition to being probative with respect to the dismissed harassment claim, Pasquariello's conduct by itself was also a material adverse action and taken in retaliation for her complaint. Because Pasquariello's conduct did not, itself, amount to a demotion, reduction in pay or loss of benefits, it will not support Ramos's discrete and separate retaliation claim. (McRae, supra, 142 Cal.App.4th at p. 393.)
This leaves Ramos's 2011 and 2012 requests for a transfer to Corcoran. As the court in McRae noted, transfers and the denial of transfers do not typically rise to the level of material adverse action under FEHA, especially where, as here, they do not involve a demotion, reduction in pay or loss of benefits. (McRae, supra, 142 Cal.App.4th at pp. 386-387.) The record here does not support any exception to that general rule.
Although Ramos's physician suggested in support of one of her transfer requests that a transfer away from Donovan would assist in Ramos's recovery, as we have noted, when in 2013 Ramos was transferred to Corcoran as a corrections officer her anxiety reemerged and she was given an administrative position which did not exacerbate her condition. At most then, had a transfer to Corcoran been granted earlier, the broader and more enduring nature of Ramos's anxiety would have been discovered earlier and perhaps an administrative position at Corcoran would have been found for her earlier. However, the fact the process employed by Corrections was simply not expeditious, but one that nonetheless did finally result in an assignment in a location Ramos desired and in a position she was capable of fulfilling, will not permit a finding that the delay in approving Ramos's transfer was itself a material adverse action by Corrections. (See McRae, supra, 142 Cal.App.4th at p. 393.)
B. Legitimate NonRetaliatory Reasons
Moreover, even if the denials of Ramos's transfer requests were actionable, the record shows there were legitimate nonretaliatory reasons for denying her transfer requests. (See Morgan v. Regents of University of California, supra, 88 Cal.App.4th at pp. 68-69.) As Corrections argues, at the time of Ramos's transfer requests, the Legislature, by enacting Assembly Bill 109 (AB 109), had recently required Corrections to engage in a substantial realignment of the prison system as a means of bringing it into compliance with a federal court order which required Corrections to substantially reduce its prison population. According to a Corrections official who considered transfer requests, this reduction in turn meant that many institutions and the Corcoran facility in particular, were overstaffed and no positions were available for transfer at the time Ramos made her requests.
Admittedly, a plaintiff may defeat a motion for summary judgment by showing some direct evidence of retaliatory motive or evidence which undermines the credibility of the evidence offered by the employer. (See Morgan, supra, 88 Cal.App.4th at pp. 68-69.) On appeal, Ramos argues that because of what she believes are inconsistencies between the Corrections official's declaration and the official's earlier deposition testimony, she met her burden on summary judgment. She did not.
The Corrections official was unequivocal in her declaration that there were no positions at Corcoran at the time Ramos made her requests for a transfer. The fact that, as Ramos points out, there was no written policy barring all transfers or that there was an elaborate process for reviewing transfers, in no sense undermines the official's statement with respect to the circumstances at Corcoran. Thus, even if the initial transfer denials were material actions, they are not actionable because Corrections was able to establish a legitimate nonretaliatory reason for them and Ramos was not able to show that the reason offered lacked credibility.
In sum, Corrections established that it was entitled to summary adjudication of Ramos's retaliation claim.
III
This brings us to Ramos's related claims that Corrections failed to accommodate her and failed to engage in an interactive process with her. Government Code section 12940, subdivision (m) requires employers to make reasonable accommodation for the known disability of an employee unless doing so would produce undue hardship to the employer's operation. "A reasonable accommodation is a modification or adjustment to the work environment that enables the employee to perform the essential functions of the job he or she holds or desires. [Citation.] FEHA requires employers to make reasonable accommodation for the known disability of an employee unless doing so would produce undue hardship to the employer's operation. [Citation.] The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee's disability. [Citations.]" (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373-374.)
In addition, "under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability." (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424; see Gov. Code, § 12940, subd. (n).) "FEHA requires an informal process with the employee to attempt to identify reasonable accommodations, not necessarily ritualized discussions. [Citation.] [¶] To prevail on a claim for failure to engage in the interactive process, the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred. [Citations.] 'An employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself because " ' "[e]mployees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have. . . ." ' " [Citation.] But the employee should be able to identify specific, available reasonable accommodations through the litigation process, and particularly by the time the parties have conducted discovery and reached the summary judgment stage.' " (Nealy v. City of Santa Monica, supra, 234 Cal.App.4th at p. 379.)
Reasonable accommodation may include reassignment to a vacant position if the employee cannot perform the essential functions of his or her position even with accommodation. (Gov. Code, § 12926, subd. (p)(2); Cal. Code Regs., tit. 2, §§ 11065, subds. (p)(2)(N), 11068, subd. (d)(1)(A).) FEHA requires the employer to offer the employee "comparable" or "lower graded" vacant positions for which he or she is qualified. (Cal. Code Regs., tit. 2, § 11068, subd. (d)(1), (2).) Importantly, FEHA does not require a reassignment, however, if there is no vacant position for which the employee is qualified. (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 767.) FEHA does not require the employer to promote the employee or create a new position for the employee to a greater extent than it would create a new position for any employee, regardless of disability. (Cal. Code Regs., tit. 2, § 11068, subd. (d)(4); Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389.)
The only accommodation Ramos requested while on medical leave and the only accommodation suggested by her in response to Corrections's motion for summary judgment, was a transfer to Corcoran. Corrections's failure to immediately approve a transfer to Corcoran will not support either an accommodation or an interactive claim. As Corrections points out, when her initial requests were made, Ramos was not able to return to work and there were no correction officers positions available at Corcoran. As we have discussed, shortly after she was able to return to work, her transfer to Corcoran was approved and her continuing disability was accommodated there by way of assignment to an administrative position. Given these circumstances, Ramos cannot show that Corrections either failed to accommodate her medical disability or failed to engage in the required interactive process.
DISPOSITION
The judgment is affirmed. Corrections to recover its costs of appeal.
BENKE, J. WE CONCUR: McCONNELL, P. J. NARES, J.