HAMMOND v. LOS ANGELES

Filed 2/11/08 Opinion following rehearing

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Alice E. Altoon, Judge. Affirmed in part and reversed in part.

Stephan A. Ebner and Kevin C. Boyle for Plaintiff and Appellant.

Office of the County Counsel, Raymond J. Fortner, Jr., County Counsel, Ralph L. Rosato, Assistant County Counsel, Doraine F. Meyer, Principal Deputy County Counsel, and Donna B. Koch, Principal Deputy County Counsel, for Defendants and Respondents.

[The following INTRODUCTION, FACTS, PROCEDURAL BACKGROUND, and DISCUSSION A-D are certified for publication]

INTRODUCTION

Plaintiff and appellant Yvonne Hammond (plaintiff), a nursing instructor employed by the Los Angeles County Sheriffs Department (Department) sued her employer, defendant and respondent County of Los Angeles (County), alleging five violations of the Fair Employment and Housing Act (the FEHA).^[1] Plaintiff also sued her supervisor, Betty Brennan (Brennan), alleging two causes of action for racial harassment and retaliation in violation of the FEHA. The County and Brennan successfully moved the trial court for an order granting summary judgment, and plaintiff appeals from the judgment entered based on that order.

In the published portion of this opinion, we hold that there is a triable issue of one or more material facts as to whether one year after the filing of plaintiffs administrative complaint with the Department of Fair Employment and Housing (the DFEH)the period of limitations she continued to experience an adverse employment activity so as to defeat the statute of limitations defense. We further hold that plaintiff has raised a triable issue of one or more material facts with respect to her claims for race discrimination, age discrimination, and retaliation, all in violation of the FEHA.

As we discuss in the unpublished portion of the opinion, plaintiff has raised a triable issue of one or more material facts with respect to her claims for harassment based on race. Brennan is not immune from individual liability under section 820.2, and the trial court properly granted the Countys motion for summary adjudication as to the third cause of action against the County for failing to take reasonable steps to prevent discrimination or harassment.

FACTS[2]

A. Plaintiffs Facts

From approximately October 1996, the Department employed plaintiff as a nursing instructor in the Medical Staff Development Unit (MSD Unit). She was a credentialed teacher with five years of service as a nursing instructor in the MSD Unit and 18 years of total service with the County.

In late 2001, Brennan was assigned to Twin Towers II as the new supervisor of the MSD Unit.[3] Before Brennan arrived, plaintiff taught seven to ten classes per month. Her teaching assignments amounted to 25 to 30 hours weekly. Shortly after Brennan was assigned to the MSD Unit, she asked plaintiff to demote. Plaintiff understood that request to mean that Brennan wanted her to accept a position as a staff nurse. A staff nurse earns less salary than a nursing instructor.

In February or March 2002, Brennan removed plaintiff from the classroom. Plaintiff was 62 years old at the time. Plaintiff testified, [I]t wasnt long before she told me I couldnt stay in the classroom because I was too old. Plaintiff described the conversation as follows: [S]he didnt want me in the classroom anymore because I was an old instructor and these were new people and young people and they needed experience. I was an old experienced instructor and I needed to get out of the classroom and let them have a chance. Plaintiff further testified that, [Brennan] told me she didnt want me to teach anymore, she wanted me out of the classroom because I was too old, [Brennan] wanted young people in the classroom, and from there I just sat all day in the office doing nothing. Brennan hired younger staff nurses to teach classes that had been previously assigned to plaintiff. According to plaintiff, once she was no longer teaching in the classroom, she was doing [n]othing, just sitting. It was not that plaintiff was being prevented from teaching the number of classes she thought she deservedshe didnt get any classes to teach. She said, they didnt let me teach anymore. Ultimately, she couldnt take sitting there doing nothing. Plaintiffs repeated testimony about doing nothing supports a reasonable inference that she was subjected to more than the mere redistribution of the workload among plaintiff and the new employees. Thus, plaintiff disputed Brennans assertion that the work was divided equally among the staff.

Plaintiffs testimony about the reduction in her teaching assignments was corroborated by a fellow nursing instructor, Joel Reta (Reta). According to Reta, he witnessed [Brennan] treating [plaintiff] in an inappropriate manner. [Brennan] had a condescending attitude towards her and also began taking classes away from her, while giving [him] and other instructors more responsibility.

In addition to plaintiffs testimony that her teaching assignments were reduced shortly after Brennan took over supervision of the MSD Unit, the Departments own records, which are not controverted, show that plaintiff taught no classes from February 14 to November 6, 2002, when she taught a spinal injury class. Those records reflect that after the November 6, 2002, class, she taught classes on December 10, 2002, January 23, March 21, April 8 and 17, May 22, July 28, and December 11, 2003. After February 2002, plaintiff was never given a teaching assignment schedule comparable to her pre-February 2002 teaching schedule. Thus, after July 1, 2003the date from which defendants claim the period of limitations beganplaintiff taught classes only on July 28 and December 11, 2003. In the middle of 2004, however, a new nursing director, Helen Johnson, directed that plaintiff be given additional teaching assignments. Plaintiff then began to teach 12 to 20 hours per weekstill not as many hours per week as she had taught before the arrival of Brennanseven to ten classes per week or about 25-30 hours weekly. When plaintiff was allowed to teach, Brennan monitored her classroom performance, but not the performance of the other three nursing instructors.

Plaintiff was the only African-American among the four instructors in the MSD Unit. Brennan made derogatory remarks to plaintiff and in plaintiffs presence about certain African-American employees. Examples of those remarks include, They dont know anything―They[re] dumb. . . . They didnt have any sense, they were dumb. According to plaintiff, Brennan made such remarks about Dr. Hart, Dr. Clark, and Stella Jackson, a nurse manager. Moreover, while observing plaintiff in the classroom, Brennan stated to Reta, that she didnt understand [plaintiff] because [plaintiff] was probably speaking Ebonics.

In mid-2002, plaintiff met with Captain Richard Barrantes, Brennans direct supervisor. Plaintiff told him that Brennan was a racist, and was taking away her teaching assignments.

In apparent response to plaintiffs complaint to Captain Barrantes, Brennan met with plaintiff on August 27, 2002, and proceeded to tell plaintiff in an agitated manner, Nobody screws me!―I will screw you back!―I [wont] forget you and Captain Barrantes can kiss my ass! Brennan then took plaintiff to meet with Thomas Flaherty, another nursing director. During that meeting, Brennan complained to Flaherty about plaintiffs teaching methods. Flaherty replied that Brennan should have told [plaintiff] what [Brennan] wanted. Plaintiff told Flaherty that Brennan couldnt tell me what she wanted because she didnt communicate with me, she didnt even talk to me, she didnt even speak to me and she treated me very cold.

On October 23, 2003, plaintiff complained to Captain Rodney Penner, another supervisor, regarding the treatment she was enduring. Captain Penner admitted that Brennan told him that [s]he [plaintiff] was concerned that she had had teaching responsibilities taken away from her. She expressed her concern and opinion that she felt that her supervisor or manager was racially prejudiced against African-American employees. She felt she was being unjustly treated because she was one of the few non-Filipino employees assigned to the [MSD] Unit. Captain Penner prepared a form regarding plaintiffs complaint. In the form, Captain Penner recorded the following: Upon Ms. Brennan assuming managerial responsibility of the unit in 2001, Brennan told [plaintiff] that she was going to have to leave the unit and demote. . . . Upon her [plaintiffs] refusal to demote and leave the unit, [plaintiff] said she became subjected to ongoing harassment and discrimination by Brennan. [Plaintiff] said that virtually all her duties and responsibilities have been stripped from her, and that she is excluded from meetings with other staff members. . . . [Plaintiff] believes that Brennan is racially prejudiced against African-American employees, as she has openly described specific (African-American) employees by name, as dumb.

Plaintiffs complaint to Captain Penner was investigated by the Intake Specialist Unit (ISU), the unit within the Department that had the responsibility for investigating claims of discrimination. The ISU was created pursuant to the Departments Policy of Equity to receive and process complaints related to that policy.

On June 8, 2004, the Department issued a letter to plaintiff that stated, This is a final acknowledgement of your complaint of October 22, 2003, wherein you complained about the actions of Ms. Betty Brennan. [] In summary you alleged that from approximately October 22, 2001 through October 2003, your supervisor, Ms. Betty Brennan, acted inappropriately toward you and treated you differently than other employees. [] An investigation and subsequent review by the Departments Equity Oversight Panel has established that your allegations are founded. Please be advised that appropriate administrative action has been taken.[4] (Italics added.) Plaintiff filed a complaint with the DFEH on July 1, 2004. She received a right to sue letter from the DFEH on July 13, 2004. ( 12960; 12965, subd. (b).)

B. Defendants Facts

Defendant submitted evidence that plaintiff never applied for any promotions; she never received a reduction in pay after additional nurse instructors were hired; Brennan divided the teaching assignments among all the instructors, including plaintiff, equally; all the instructors were monitored on a random basis; and no consideration was given to age, race, seniority, or sex.

Brennan stated in her declaration: Based upon my recollection and my review of an assignment plan sheet I wrote for the nursing instructors for the 2002/2003 time frame, I assigned approximately an equal amount of work to the four nursing instructors in my unit. [ ] . . . [] I am familiar with plaintiffs allegation that she had nothing to do but stare at the computer, at the walls, and at the phone all day. This statement is not supported by her annual performance evaluations, by my recollection, or by various other documents . . . . That testimony suggests that, contrary to plaintiffs assertion, Brennan did not take away the majority of plaintiffs teaching assignments and give them to the three other instructors who were not African-American―a denial rather than an explanation of plaintiffs claim of a reduction in assignments.

Brennan also stated in her declaration: It was my practice throughout my tenure as [supervisor of the MSD Unit] to monitor the classes taught by nursing instructors by sitting in on their classes on a random basis. I attended, at least in part, classes taught by each of the nursing instructors assigned to any unit in each of the subjects for which they were responsible. [] It was also the practice of my subordinate . . . to monitor the classes of each of the nursing instructors on a random basis. [] Neither my monitoring of the classes, nor that of [my subordinate], was done for the purpose of harassment of the instructors, but rather to improve the quality of the instruction our unit provided to nursing staff. (Italics added.) That testimony suggests that, contrary to plaintiffs assertion, Brennan did not constantly monitor plaintiffs performancea denial rather than an explanation of plaintiffs claim of excessive monitoring.

PROCEDURAL BACKGROUND

A. Complaint

Plaintiff filed a complaint in the trial court against the County asserting five causes of action under the FEHA for Race Discrimination, Harassment Based on Race, Violation of Government Code section 12940 (k), Age Discrimination, and Retaliation. The first cause of action for race discrimination, the third cause of action for violation of section 12940, subdivision (k), and the fourth cause of action for age discrimination were asserted only against the County. The second cause of action for harassment and the fifth cause of action for retaliation were asserted against both the County and Brennan.

In the complaint, plaintiff alleged, inter alia, that defendants took away virtually all her teaching assignments because of her age and race, and retaliated against her when she complained. Plaintiff also asserted other conduct by defendants in support of her FEHA claims, such as her relocation to Mens Central Jail.

B. Summary Judgment Motion

Defendants moved for summary judgment and summary adjudication as to each cause of action, raising specific contentions as to each. As to the race and age discrimination and racial harassment claims, defendants asserted that they were time-barred because they were based on acts that occurred prior to July 1, 2003. As to the claims based on race and age discrimination and retaliation, defendants asserted that plaintiff cannot establish a prima facie case. According to defendants, plaintiff did not show that she suffered an adverse employment action. As to the racial harassment claim, defendants argued that plaintiff had failed to establish that their conduct was severe and pervasive so as to be considered actionable. (See Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 465.)

As discussed above, Brennan denied she had reduced plaintiffs teaching assignments or had monitored only plaintiffs classroom performance. Defendants did not give any nondiscriminatory reason for plaintiffs reduction in teaching assignments or the alleged monitoring of plaintiff. Instead, defendants took the position there was no such reduction or monitoring of only plaintiff.

Plaintiff opposed the motions based on, inter alia, the evidence set forth above. After a hearing, the trial court issued an order granting defendants motion for summary judgment.

C. Reconsideration and Evidentiary Rulings

Plaintiff filed a motion for reconsideration based on the California Supreme Courts then-recent decision in Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028 (Yanowitz). On its own motion, the trial court determined that it should reconsider its order granting summary judgment in light of Yanowitz and set a hearing.

At the second hearing on defendants motions, the trial court sustained the Countys written objection to the admission in evidence of the June 8, 2004, letter from the Department to plaintiff informing her that her complaint to Captain Penner had been investigated and her allegations were deemed founded. That letter had been an exhibit to Captain Penners deposition. The trial court concluded that the letter was inadmissible, not as a matter of discretion, but under the legal premise that Penal Code section 832.7[5]applied. On appeal, plaintiff refers to and relies upon this June 8, 2004, letter.

We determine that the letter is part of the evidentiary record on appeal and that the trial court erred in excluding the letter from evidence. It was admissible, inter alia, as an admission by an authorized party representative (Evid. Code, 1222; see Evid. Code,  1280 [record by public employee]) and was not subject to Penal Code section 832.7. There are a number of reasons why, based on the evidence before the trial court, Penal Code section 832.7 was not applicable here. The letter was not part of or, information from, a personnel record, nor did it concern a peace officer or custodial officer. (See Pen. Code, 7, 830, 830.1, 831.5.) Penal Code section 832.7 does not appear to apply to a nurse or teacher. Moreover, it is not a record maintained pursuant to Penal Code section 832.5, as that section applies to complaints by members of the public. The reference to complaining party in Penal Code section 832.7 is governed by the term complaints by members of the public in Penal Code section 832.5.

The County also orally objected to the declaration of Reta, another nursing instructor. [County Counsel]: I do have an objection as I had filed previously with the motion for summary judgment. Before reconsideration was granted, its the same objection to the declaration of Reta because there is no personal knowledge under oath so the same―Id like to renew the objection. The Court: As to Joel Reta, anything that is hearsay, of course, the court will not consider hearsay but his own personal knowledge and observations, whatever he stated, the court does consider. Defendants did not make, and the trial court did not rule on,a specific objection to that portion of Retas declaration dealing with Brennans Ebonics comment, and therefore we consider that portion of the declaration to be part of the record. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1; Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 566; Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 736.) Moreover, the comment is not introduced for the truth of the matter asserted and therefore is not hearsay, and Reta had personal knowledge of the comment.

After hearing oral argument, the trial court issued an order again granting the defendants motions for summary judgment as to all causes of action. The trial court entered judgment on its order granting summary judgment.

This appeal followed.

DISCUSSION

A. Standard of Review

We review the grant of summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [17 Cal.Rptr.2d 356].) We make an independent assessment of the correctness of the trial courts ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [38 Cal.Rptr.2d 35].) A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal.Rptr.2d 841, 24 P.3d 493].) (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1216-1217.)

In performing our de novo review, we view the evidence in the light most favorable to plaintiffs as the losing parties. [Citation.] In this case, 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.) As stated in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz), an employment discrimination case, Under Californias traditional rules, we determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiffs case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law. Summary judgment is a severe remedy which is to be granted with caution. (Paper Savers, Inc. v. Nacsa (1996) 51 Cal.App.4th 1090, 1094.)

B. THE FEHA

1. Prohibited Practices

Section 12940, subdivision (a) provides in pertinent part that it is an unlawful employment practice for an employer, because of the race . . . [or] . . . age . . . of any person . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment. [T]he determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor 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 employees job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] section 12940(a) . . . . (Yanowitz, supra, 36 Cal.4th at pp. 1054-1055.)

In addition, the FEHA prohibits an employer from harassing an employ on the basis of race or other factors. ( 12940, subd. (j)(1); see Cal. Code Regs., tit. 2, 7287.6, subd. (b)(1).) The FEHA alsoprovides that it can be an unlawful employment practice for any employer . . . or person to . . . discriminate against any person because the person has opposed any practices forbidden under this part or has filed a complaint, testified, or assisted in any proceeding under this part. ( 12940, subd. (h); see Cal. Code Regs., tit. 2,  7287.8, subd. (a).) Employees may establish a prima facie case of unlawful retaliation by showing that (1) they engaged in activities protected by the FEHA, (2) their employers subsequently took adverse employment action against them, and (3) there was a causal connection between the protected activity and the adverse employment action. (Miller v. Dept. of Corrections (2005) 36 Cal.4th 446, 472, 472 (Miller).)

In Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1231-1233 (Taylor), the court explained that Yanowitz, supra, 36 Cal.4th 1028, had adopted a materiality test for determining whether an employment action is adverse for purposes of the FEHA. [T]he proper standard for defining an adverse employment action is the materiality test, a standard that requires an employers adverse action to materially affect the terms and conditions of employment. (Yanowitz, supra, 36 Cal.4th at pp. 1036, 1050; see Akers v. County of San Diego [(2002)] 95 Cal.App.4th [1441,] 1454-1457.) (Ibid.) In determining whether a plaintiff has suffered an adverse employment action under Yanowitz, it is appropriate to consider plaintiffs allegations collectively under the totality-of-the circumstances approach. (Yanowitz, supra, 36 Cal.4th at p. 1052, fn. 11, 1056.)

2.Burden Shifting

California has adopted the three-stage burden shifting test established by the United States Supreme Court for trying claims of discrimination . . . based on a theory of disparate treatment. [Citations.] [] This so-called McDonnell Douglas^[[6]] test reflects the principle that direct evidence of intentional discrimination is rare and that such claims must usually be proved circumstantially. (Guz, supra, 24 Cal.4th at p. 354.) The McDonnell Douglas test is therefore used when there is not direct evidence of discrimination. (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1144.) Under the McDonnell Douglas test, the initial burden of coming forward and proving a prima facie case of discrimination is on the plaintiff. (Ibid.) Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position sought or was performing competently in the position he held, (3) he suffered an adverse employment action, and (4) some other circumstance suggests a discriminatory motive. (Id. at p. 355.) If the plaintiff establishes a prima facie case, a rebuttable presumption of discrimination arises. (Ibid.)

Upon a showing of a prima facie case by the plaintiff, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to raise [ ] a genuine issue of fact and to justify a judgment for the [employer], that its action was taken for a legitimate, nondiscriminatory reason. [] If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employers proffered reasons as pretexts for discrimination, or offer other evidence of a discriminatory motive. (Guz, supra, 24 Cal.4th at pp. 355-356.) The ultimate burden of persuasion on the issue of actual discrimination remains with the plaintiff. (Id. at p. 356.)

C. Statute of Limitations

Defendants contend plaintiffs claims under the FEHA for acts of discrimination, harassment, and retaliation that occurred prior to July 1, 2003more than one year prior to the July 1, 2004,[7]filing of plaintiffs administrative complaint with the DFEHare barred under the one-year limitations period in section 12960, subdivision (d).[8] Plaintiff asserts that the continuing violation doctrine[9]applies and entitles her to rely on discriminatory conduct that occurred prior to July 1, 2003, regardless of the statute of limitations. Plaintiff also argues that even if the continuing violation doctrine does not apply, actionable conduct took place within the limitations period in section 12960, subdivision (d).

We do not need to determine whether the continuing violation doctrine applies because plaintiff has submitted evidence that within the one-year limitations period actionable conduct occurred. That evidence shows, inter alia, that the alleged actionable conductreduction in plaintiffs classroom teaching assignmentsbegan in early 2002 and continued after July 1, 2003.

Our courts frequently turn to federal authorities interpreting Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) (Title VII) for assistance in interpreting the FEHA and its prohibition against sexual harassment. (See Aguilar v. Avis Rent A Car System, Inc. [(1999)] 21 Cal.4th [121,] 129130; Beyda v. City of Los Angeles [(1998)] 65 Cal.App.4th [511,] 517.) (Miller, supra, 36 Cal.4th at p. 463; see Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812 (Richards).) In National Railroad Passenger Corporation v. Morgan (2002) 536 U.S. 101 (Morgan), which arose under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.  2000e et seq., the United States Supreme Court held that an act within the limitations period in furtherance of racial discrimination or retaliation is a discrete act that is not barred by the statute of limitations, and that evidence of conduct outside the limitations period is admissible as relevant background evidence to show, inter alia, a prohibited motivation for the discrete act. (Morgan, supra, 536 U.S. at p. 112.) According to the court in Morgan, discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred. The existence of past acts and the employees prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim. (Id. at p. 413, italics added.)

[F]ollowing the guidance of federal law (Miller, supra, 36 Cal.4th at p. 466), we apply the Morgan methodology here. Under this approach, Brennans decisions concerning the number and type of teaching assignments that plaintiff received from and after July 1, 2003alleged adverse employment actionscan be attributed to plaintiffs race and age based on the statements and acts that took place before July of 2003. Therefore, her FEHA claims based on acts that occurred within the limitations period are not barred by section 12960, subdivision (d).

The reasoning of the recent United States Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. (2007) 550 U.S. __; 127 S.Ct. 2162 (Ledbetter), does not change our conclusion. Ledbetter distinguishes for statute of limitations purposes between discriminatory acts occurring within the limitations period and discriminatory acts occurring outside the period that may have residual adverse effects upon the employee within the period. In Ledbetter, the employee claimed that during the course of her employment, her supervisors gave her poor performance evaluations based on her sexa violation of Title VII[10]which evaluation resulted in her pay not increasing as it would have if she had been evaluated fairly. (Ledbetter, supra, 550 U.S. at p. __; 127 S.Ct. at pp. 2165-2166.) According to the plaintiff in Ledbetter, those past evaluations, each of which occurred outside the limitations period, decreased the level of her pay then and throughout her subsequent employment, so that by the time she retired, she was earning significantly less than her male colleagues. (Ibid.) The jury found for the plaintiff on her Title VII pay discrimination claim and awarded her backpay and damages. (Id. at p. 2166.)

On appeal, the employer contended that the plaintiffs pay discrimination claim was time-barred with respect to all pay decisions made outside the limitations period. The employer also argued that no discriminatory act relating to the plaintiffs pay occurred within the limitations period. (Ledbetter, supra, 550 U.S. at p. __, 127 S.Ct. at p. 2166.) The Court of Appeals reversed, holding that a Title VII pay discrimination claim cannot be based on any discriminatory pay decision that occurred outside the limitations period even though that decision affected nondiscriminatory pay decisions within the limitations periodthe EEOC charging period. (Ibid.) The Court of Appeal held that there was insufficient evidence to prove that the employer had acted with discriminatory intent in making the only two pay decisions that occurred within the limitations period. (Ibid.)

In affirming the decision of the Court of Appeals, the Supreme Court emphasized that [i]n addressing the issue whether an EEOC charge was filed on time, we have stressed the need to identify with care the specific employment practice that is at issue. Morgan, 536 U.S., at 110-111, 122 S. Ct. 2061, 153 L. Ed. 2d 106. (Ledbetter, supra, 550 U.S. at p. __, 127 S.Ct. at p. 2167.) In Morgan, we explained that the statutory term employment practice generally refers to a discrete act or single occurrence that takes place at a particular point in time. 536 U.S., at 110-111, 122 S. Ct. 2061, 153 L. Ed. 2d 106. We pointed to termination, failure to promote, denial of transfer, [and] refusal to hire as examples of such discrete acts, and we held that a Title VII plaintiff can only file a charge to cover discrete acts that occurred within the appropriate time period. Id., at 114, 122 S. Ct. 2061, 153 L. Ed. 2d 106. (Id. at 2169.) The Supreme Court stated, The EEOC charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination. But of course, if an employer engages in a series of acts each of which is intentionally discriminatory, then a fresh violation takes place when each act is committed. See Morgan, supra, at 113, 122 S. Ct. 2061, 153 L. Ed. 2d 10. (Ibid., italics added.)

Thus, according to Ledbetter, supra, 550 U.S. __, 127 S.Ct. 2162, even though a prior discriminatory evaluation and pay adjustment continue to have negative effects on an employees pay throughout her employment, the cause of action accrues at the time the evaluation and pay adjustment are made, when the employer acted in a discriminatory manner with adverse consequences for the employee. Generally, a cause of action accrues for purposes of the statute of limitations, and the applicable limitations period begins to run, when the plaintiff has suffered damages from a wrongful act. (Lyles v. State of California(2007) 153 Cal.App.4th 281, 286.) Once the damage is such that the cause of action accrues, additional damage from the same wrong does not alter the accrual of the cause of action or otherwise extend the limitations period. (Id. at p. 290 [inverse condemnation action]; see also Davies v. Krasna (1975) 14 Cal.3d 502, 514 [neither uncertainty as to the amount of damages nor difficulty in proving damages tolls the period of limitations].)

In this case, unlike Ledbetter, supra, 550 U.S. __, 127 S.Ct. 2162, plaintiffs evidence supports a reasonable inference that Brennan engaged in actssome within the limitations periodeach of which was intentionally discriminatory. According to plaintiff, beginning around February 2002, Brennan made periodic decisions about the number and type of classes that plaintiff would be assigned to teach. The Departments records show that initially Brennan gave no assignments to plaintiff from approximately February through October 2002. Thereafter, Brennan gave assignments to plaintiff, but they were sporadic and rarely did plaintiff receive more than one teaching assignment a monthfar fewer classes than she had taught before Brennan reduced plaintiffs teaching schedule. After July 1, 2003, those records reflect that plaintiff taught a class on July 28, 2003, and again on December 11, 2003. It was not until the middle of 2004, after Brennan was replaced with a new nursing director, that plaintiff began to teach 12 to 20 hours weekly.

In Ledbetter, supra, 550 U.S. __, 127 S.Ct. 2162, intentional acts of sex discrimination―poor performance reviews―occurred outside the limitations period, but caused an adverse ripple effect on the plaintiffs pay throughout her tenure with the defendant company. The later payments within the limitations period were not based on any discriminatory evaluation or decision, even though affected by the earlier discriminatory acts outside the limitations period. Thus, Ledbetter, a pay discrimination case, was based on acts of discrimination by a supervisor outside the limitations period that adversely affected the employers nondiscriminatory pay decisions within the period. As a result, the rationale of Ledbetter has no application to a case such as this one in which plaintiffs evidence shows discrete acts of discrimination both inside and outside the limitations period. Here, plaintiffs evidence supports a separate cause of action accruing within the limitations period in connection with the discrete acts during that period.

Unlike the supervisors in Ledbetter, supra, 550 U.S. __, 127 S.Ct. 2162, Brennan did not just make a single decision based on age or race outside the limitations period that continued to affect plaintiff adversely during the limitations period―such as, for example, demoting plaintiff to a staff nurse or permanently removing her from the classroom. Instead, Brennan initially removed plaintiff from the classroom in early 2002, but then allowed her to teach classes on a sporadic basis beginning in late 2002 and continuing through July 1, 2003. Thus, if Brennans initial decision to remove plaintiff from the classroom was tainted by a prohibited motive under the FEHA, a reasonable fact-finder could infer that Brennans subsequent decisions concerning plaintiffs teaching assignments within the limitations period were similarly motivated.

Plaintiff has submitted evidence of statements and actions prior to July 2003 suggesting that the reduction in her classroom teaching assignments was based on age and race. These included statements by Brennan that plaintiffs teaching assignments were being eliminated because of age and other statements disparaging employees based on their race. But after July 2003, i.e., within the limitations period, there is evidence that Brennan continued to limit the number and types of teaching assignments that plaintiff would receive. In doing so, Brennan made discrete decisions concerning plaintiffs workload within the limitations period, each of which was arguably a fresh violation of the FEHA. Thus, even if the analysis of Ledbetter, supra, 550 U.S __, 127 S.Ct. 2162 applies to FEHA cases, plaintiff has raised a triable issue of fact concerning whether an actionable adverse employment action under the FEHA (Yanowitz, supra 36 Cal.4th at pp. 1054-1055) occurred within the limitations period.

D. There Is a Triable Issue of One or More Material Facts Concerning

Plaintiffs First Cause of Action for Race Discrimination

In connection with her prima facie case on her race discrimination claim, plaintiff provided evidence that she is African-American, she had been teaching a number of nursing classes in the MSD Unit for five years for the County, she was relieved of her assignments sometime after Brennan arrived, and she continued to have a substantially reduced teaching schedule thereafter. To show that the actions against her were a result, in part, of racial animus, plaintiff provided evidence of race-based comments by Brennan and differential treatment based on race by Brennan. The County did not assert that plaintiffs job performance was a justification for its actions, but rather contended there was no adverse employment action within the limitations period.[11]

1. Adverse Employment Action

The County contends that plaintiff cannot make the required prima facie showing of race discrimination because she has insufficient evidence that she suffered an adverse employment action. According to the County, plaintiffs testimony that Brennan took away virtually all of her former teaching assignments is insufficient.

As the court observed in Yanowitz, supra, 36 Cal.4th at page 1054, mere offensive utterances or even a pattern of social slights . . . cannot properly be viewed as materially affecting the terms, conditions, or privilege of employment for purposes of section 12940(a), but the phrase terms, conditions, or privileges of employment must be interpreted liberally . . . . When plaintiffs evidence is viewed under a totality-of-the circumstances approach and in the light most favorable to her, there are sufficient facts to raise a triable issue as to whether she suffered an adverse employment action within the limitations period, i.e., adverse treatment that is reasonably likely to impair a reasonable employees job performance or prospects for advancement or promotion . . . . (Yanowitz, supra, 36 Cal.4th at pp. 1054-1055.)

There is evidence showing that Brennan substantially reduced plaintiffs teaching assignments, which continued after July 1, 2003. The Departments records show that plaintiff taught no classes for most of 2002. In 2002 and 2003, she only taught classes on nine days. There is also evidence that this reduction in classes was attributable to race and age. This evidence is sufficient to raise a triable issue of fact concerning whether plaintiff suffered an adverse employment action. Substantially reducing or eliminating a teachers classroom teaching assignments impairs the teachers ability to perform the job for which she was hired and, in effect, relegates her to some undefined, but lesser, status other than that of a full time classroom instructor. Therefore, a trier of fact could infer that it was reasonably likely that plaintiffs job performance within the limitations period was impaired by that action against plaintiff.

2. Nondisciminatory Motive

In response to plaintiffs prima facie case, the County argues its evidence shows that Brennan did not dramatically curtail plaintiffs teaching assignments, and instead divided assignments equitably among nursing instructors, without regard to race or age. Nevertheless, the Departments own records show that plaintiffs teaching assignments were, and remained, substantially reduced. Accordingly, there is at least a triable issue of fact as to whether Brennans workload assignments within the limitations period constituted adverse employment actions against plaintiff. The County did not submit evidence of a neutral, nondiscriminatory reason for substantially reducing plaintiffs workload because it denies that any such substantial reduction took place. Therefore, it failed to satisfy its burden to show a neutral, nondiscriminatory reason under the McDonnell Douglas test. As a result, the presumption of discrimination that arose from plaintiffs prima facie showing was not rebutted. Accordingly, Guz, supra, 24 Cal.4th at page 370 is distinguishable because that age discrimination case hinged upon the defendants contention that its reason for the adverse employment action was justified and not related to age.

3. The Evidence of Pretext and Requisite Racial Animus

Based on the flawed assertion that it provided sufficient nondiscriminatory reasons for the reduction in plaintiffs teaching assignments, the County contends the ultimate burden of proving actual race discrimination shifted back to plaintiff, and she submitted no evidence sufficient to raise a triable issue of fact concerning pretext or the requisite racial animus. Even if the County had satisfied its burden under the McDonnell Douglas test, and rebutted the presumption of race discrimination, plaintiff contends that her evidence shows that the reduction in her teaching assignments was motivated by a racial animus.

Plaintiff supplied the requisite evidence of racial animus. Retas testimony about Brennans Ebonics comment and plaintiffs testimony that Brennan made derogatory remarks about other African-American coworkers constitute independent evidence of racial animus. Also raising a triable issue concerning racial animus is plaintiffs testimony that she was the only African-American among the four instructors in the MSD Unit and that Brennan asked plaintiff to demote, took away her teaching assignments, gave those assignments to the other instructors who were not African-American, and monitored plaintiffs classroom performance, but not the performance of instructors who were not African-American. Moreover, the Departments investigation of plaintiffs allegations about Brennans conduct toward her and other employees concluded that plaintiffs allegations were founded.

The entirety of plaintiffs evidence when viewed in the light most favorable to her, raised a triable issue of fact concerning whether the employment actions taken against her within the limitations period were racially motivated.

[The following parts E and F are not certified for publication]

E. There Is a Triable Issue of One or More Material Facts Concerning

Plaintiffs Second Cause of Action for Racial Harassment

1. Triable Issues Concerning Hostile Work Environment

Defendants contend that plaintiffs evidence of racial harassment does not rise to the level of the severe or pervasive conduct required to state a claim under the FEHA based on a hostile work environment. Plaintiff, relying on much of the same evidence that supports her race discrimination claim, argues that it also serves to raise a triable issue of fact concerning whether she was subjected to a hostile work environment.

In California, [the FEHA] . . . differs from Title VII in that it explicitly prohibits an employer from harassing an employee on the basis of race, sex, or other specific grounds. ([former] Gov. Code, 12940, subd. (h) [currently subd. (j)(1)].) Harassment includes [v]erbal harassment, e.g., epithets, derogatory comments or slurs. . . . (Cal. Code Regs., tit. 2, 7287.6, subd. (b)(1)(A).) Yet, despite the differences in statutory language, in light of the parallel antidiscriminatory objectives, the California courts have been guided in their interpretation of FEHA by the federal court decisions interpreting Title VII. [Citations.] In particular, although no California cases have directly addressed racial harassment in the workplace, [fn. omitted] the California courts have applied the federal threshold standard to claims of sexual harassment and held that FEHA is violated when the harassment was sufficiently severe or pervasive as to alter the conditions of the victims employment. [Citations.] (Etter v. Veriflow Corp., supra, 67 Cal.App.4th at pp. 464-465.) [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 employees work performance. (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 22-23.)

In Dee v. Vintage Petroleum, Inc. (2003)106 Cal.App.4th 30, 32-33 (Dee), the plaintiff employee, a Filipino, testified that her supervisor asked her to lie about company business, to take a document from the desk of another supervisor without that supervisors knowledge, insulted her, and used profanity in her presence. On one occasion, when discussing with plaintiff whether he had asked plaintiff to lie to another supervisor, plaintiffs supervisor asked, Well, what are you, a Filipino? When plaintiff replied in the affirmative, the supervisor stated, Well its your Filipino understanding versus mine. (Id. at p. 33.)

In reversing defendants summary judgment on the plaintiffs racial harassment claim under the FEHA, the court in Dee, supra, 106 Cal.App.4th 30 held that [a] reasonable trier of fact could infer that the racial slur was not an isolated event because it explained [the supervisors] motivation for creating an abusive working environment for [the plaintiff]. [The plaintiffs] evidence showed that [the supervisor] called her a bitch and constantly used the word asshole. He berated her, harassed her, ordered her to lie and blamed her for tasks he ordered her to perform. (Id. at p. 37.) Based on the evidence of a single racial slur, the Dee court held that the plaintiff had raised sufficient facts to overcome the defendants summary judgment motion on her racial harassment claim. In doing so, the court emphasized that when a supervisor makes a racially demeaning remark, rather than a coworker, the remark is attributed to the employer, and therefore even one such remark from a supervisor may be severe enough to alter the conditions of employment. (Id. at pp. 36-37.)

Here, plaintiffs evidence showed that Brennan made the Ebonics comment about plaintiff to Reta, and that Brennan also made derogatory racial comments to plaintiff concerning her African-American coworkers. Plaintiffs evidence also showed that Brennan substantially reduced her teaching assignments and excessively monitored plaintiffs classroom performance when plaintiff was allowed to teach. A reasonable trier of fact could infer from that evidence that plaintiffs race motivated Brennans conduct during the limitations period in taking away the majority of her teaching assignments and giving them to instructors who were not African-American, and in monitoring plaintiffs performance while not monitoring the nursing instructors who were not African-American. Looking at all the circumstances, plaintiff has raised a triable issue of fact as to whether Brennans conduct during the limitations period was severe and pervasive enough to alter the conditions of plaintiffs employment and thereby constituted actionable racial harassment.

2. Brennan Is Not Immune Under Section 820.2

Brennan argues that under section 820.2,^[12] she is immune from individual liability for racial harassment. Relying exclusively on the Supreme Courts decision in Caldwell v. Montoya (1995) 10 Cal.4th 972 (Caldwell), Brennan contends that her actions in dividing teaching assignments among the nursing instructors and in monitoring their classroom performance were acts of discretion vested in her as the supervisor of the MSD Unit that were subject to section 820.2 immunity. Plaintiff counters that section 820.2 does not grant immunity for the type of conduct in issue, but rather is limited to public employees vested with responsibility to make policy decisions.

Caldwell, supra, 10 Cal.4th 972 involved a vote by three school board members not to renew the contract of the plaintiff, the superintendent of the school district. As a result of the school boards action, the plaintiff was terminated. (Id. at p. 976.) In addition to the school district, the plaintiff sued the three individual school board members who had voted not to renew his contract for, inter alia, FEHA violations based on race and age discrimination. (Id. at p. 977.) The individual defendants demurred, claiming discretionary act immunity under section 820.2, and the trial court sustained the demurrer. In a sharply divided decision, the Court of Appeal reversed the trial courts judgment, holding that section 820.2 did not provide immunity for the acts alleged in the complaint. (Caldwell, supra, 10 Cal.4th at pp. 977-78.)

The Supreme Court in Caldwell, supra, 10 Cal.4th 972, reversed, holding that as a matter of law, the decision of an elected school board whether to renew the contract of the districts superintendent is a basic policy decision, and thus a discretionary act of the kind for which public employees are entitled to personal immunity under section 820.2 of the Tort Claims Act. By the terms of section 820.2, such personal immunity applies even against liabilities imposed by prohibitory state statutes of general application such as FEHA, unless there is a clear indication of legislative intent that immunity be withdrawn in a particular case. (Id. at p. 989, italics added.)

The facts of the instant case bear no resemblance to those at issue in Caldwell, supra, 10 Cal.4th 972. There, the Supreme Court concluded that the [school] boards collective decision whether to hire or fire a person as the districts superintendent must be considered a basic policy decision, immune from civil damage actions that seek to hold individual board members liable for the motive behind their votes. (Id. at p. 983.) Here, Brennans acts related to teaching assignments are not basic policy decisions made by a member of a quasi-legislative body. They are individual decisions of an employees supervisor that, if made with an unlawful motive such as racial animus, are actionable under FEHA. Citing the Supreme Courts earlier observation in Johnson v. State of California (1968) 69 Cal.2d 782, 787-790 (Johnson), the Caldwell court observed that almost all acts involve some choice among alternatives, and the statutory immunity [under section 820.2] cannot depend upon literal or semantic parsing of the word discretion. [Citation.] [] [A] workable definition of immune discretionary acts draws the line between planning and operational functions of government. [Citation.] Immunity is reserved for those basic policy decisions [which have] . . . been [expressly] committed to coordinate branches of government, and as to which judicial interference would thus be unseemly. (Id. at p. 981, italics in original.) Brennans acts towards plaintiff fall clearly on the operational side of the line drawn in Johnson and affirmed in Caldwell. Therefore, because those acts are not related to basic policy decisions, Brennan is not immune from personal liability under section 820.2. (See Taylor, supra, 144 Cal.App.4th at pp. 1238-1239 [For immunity to apply, the defendants must show that the decisions in question are properly considered as basic policy decisions made at the planning stage of [the entitys] operation, rather than routine duties incident to the normal operations of the employees office or position].)

F. Plaintiff Failed to Exhaust Her Administrative Remedies as to Her Third Cause of Action Against the County for Failure to

Prevent Discrimination and Harassment Under FEHA

Appellants third cause of action against the County is based on section 12940, subdivision (k)^[13]for failing to take reasonable steps to prevent discrimination and harassment. The County argues that the administrative complaint plaintiff filed with FEHA did not assert that the County failed to take reasonable steps to prevent discrimination or harassment. Therefore, according to the County, plaintiff has failed to exhaust her administrative remedies.

Under California law, an employee must exhaust the . . . administrative remedy provided by [FEHA], by filing an administrative complaint with the California Department of Fair Employment and Housing (DFEH) . . . and obtaining the DFEHs notice of right to sue . . . , before bringing suit on a cause of action under the act or seeking the relief provided therein. . . . [Citations.] 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.] We have recognized, in the context of [FEHA], that [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.)

The administrative complaint that plaintiff filed with the DFEH stated that on a continuing basis plaintiff was harassed, [r]etaliated [a]gainst, and subjected to [d]ifferential [t]reatment. It also states that [Brennan and the County] engaged in harassment and other acts of discrimination on account of [pla