Hammond v. Los AngelesCounty

Filed 6/18/07 Hammond v. Los Angeles County CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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. Reversed and remanded with instructions.

Stephen 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.

INTRODUCTION

Plaintiff and appellant Yvonne Hammond (plaintiff) sued her employer defendant and respondent County of Los Angeles (County),alleging five causes of action for various violations of the Fair Employment and Housing Act (FEHA).^[1] Plaintiff also sued her supervisor, Betty Brennan (Brennan), alleging two causes of action for racial harassment and retaliation in violation of FEHA. The County and Brennan successfully moved the trial court for an order granting summary judgment.

We hold that plaintiff has raised triable issues of fact with respect to her claims for race discrimination, harassment based on race, and retaliation; that her second cause of action against Brennan for harassment is not barred under Government Code section 820.2;[2]that her third cause of action under section 12940, subdivision (k) is barred due to her failure to exhaust administrative remedies; and that she has failed to raise a triable issue of fact as to her fourth cause of action for age discrimination. We therefore reverse the judgment based on the trial courts order granting summary judgment, and remand the matter to the trial court with directions to modify its order so as to deny summary adjudication as to the first, second, and fifth causes of action. As noted, the trial court properly granted the Countys motion for summary adjudication as to the third and fourth causes of action.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Facts upon Which the County Based Its Motion

The Countys Separate Statement of Undisputed Facts set forth the following facts as the basis for its summary judgment motion. Plaintiff had been employed by the Los Angeles County Sheriffs Department (Department) as a nursing instructor in the Medical Staff Development Unit (MSD Unit) since approximately October, 1996. There had never been a promotional position available to which a nursing instructor could be promoted within that Unit. Plaintiff had never applied for any promotions since her employment with the Department because she was okay with [her] job as a nursing instructor. Her salary had never been reduced or changed in any way based upon the number of classes she was assigned to teach.

Brennan was assigned to head up the MSD Unit in December 2000, including oversight of the training program for the Departments Medical Services personnel.[3] In early 2001, soon after she took over supervision of the MSD Unit, Brennan assigned two additional nursing instructors to that Unit from other locations within the Medical Services Bureau, bringing the total number of nurse instructors in that Unit, including plaintiff, to four.

Brennan divided teaching assignments equitably among the four instructors, including plaintiff, based on their interests, backgrounds, and on her best judgment. Plaintiff was given a number of teaching assignments by Brennan in 2002 and 2003, to be taught to the level of practicing, registered nurses. The division of assignments among nursing instructors was made at all times without consideration of the instructors age, race, ethnicity, or gender. It was Brennans practice to monitor, on a random basis, classes taught by nursing instructors for the purpose of quality improvement. In the Spring of 2002, Brennan determined that additional instructors were needed for her staff to assist in teaching a specially assigned course, and fourteen individuals who volunteered for the assignment―including five African Americans, five Asians, two Hispanics, and two Caucasians―were appointed.

Brennan did not receive any complaints from plaintiff regarding disruptive conduct by coworkers. In October 2003, however, after two coworkers complained about plaintiffs conduct towards them, plaintiff was moved to an office at the Mens Central Jail facility across the street from her office at the Twin Towers Jail facility on the recommendation of the Office of Affirmative Action Compliance pursuant to Department policy, pending investigation. Plaintiff was supplied a computer at the Mens Central Jail facility on approximately November 21, 2003. During the time she waited for a computer, at least five working computers were available for her use.

Plaintiff filed a complaint with the Department of Fair Employment and Housing (DFEH) on July 1, 2004. The complaint did not include any allegation that the County failed to take reasonable steps to prevent discrimination, harassment, or retaliation. Plaintiff received a right to sue letter from DFEH on July 13, 2004.

B. Plaintiffs Additional Facts

The following facts are taken from plaintiffs Separate Statement of Additional Material Facts in Dispute filed in support of her opposition to the Countys motion for summary judgment. In late 2001,[4]Brennan was assigned toTwin Towers II as the new supervisor of the MSD Unit. Until Brennan began working as the Clinical Nursing Director in the MSD Unit, plaintiff was teaching approximately seven to ten classes on a regular basis. Although plaintiff was the only credentialed teacher and had the most seniority, Ms. Cristobal, who was newly assigned to the MSD Unit, was made a supervisor when Brennan began as Director.

Shortly after Brennan was assigned to the MSD Unit, she asked plaintiff to demote. Brennan told plaintiff, I want younger people [teaching] in the classroom―They havent had a chance―Youre an older instructor. Plaintiff was 62 at the time. According to plaintiff, Brennan subsequently took away virtually all of plaintiffs classes, except one monthly class teaching suicide prevention. Plaintiff also maintained that when she was allowed to teach, Brennan monitored her classroom performance, but not the performance of the other nursing instructors. Plaintiff was the only African American instructor.

Brennan made derogatory remarks, specifically with reference to certain African American employees (i.e., Stella Jackson, John Clark, M.D., Don Hart, M.D., and African American nurses) to plaintiff and in plaintiffs presence, such as, They dont know anything―Theyre dumb. While observing plaintiff in the classroom, Brennan stated to another nursing instructor, Joel Reta, that [she] cant understand plaintiffshe speaks ebonics.

In the chain of command, Tom Flaherty and Brennan were Nursing Directors under the direct supervision of Captain Barrantes and, subsequently, Captain Penner. Ms. Cristobal, a Nursing Manager, was under the direct supervision of Brennan, and plaintiff was under all of them.

Plaintiff met with Captain Barrantes in mid-to-late 2002. Plaintiff told him about the adverse working conditions and hostile environment as a result of Brennans acts towards her. Specifically, she told Captain Barrantes 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 another Nursing Director, Tom Flaherty. During that meeting, Brennan complained to Mr. Flaherty about plaintiffs teaching methods. Mr. Flaherty replied that Brennan should have told [plaintiff] what [Brennan] wanted.

On October 23, 2003, plaintiff complained to Captain Penner regarding the treatment she was enduring. Plaintiff told Captain Penner that her teaching responsibilities had been taken away, that she believed Brennan was prejudiced against African American employees, and that 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.

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.[5]

Fellow nursing instructor Joel Reta told plaintiff in 2002 to be careful because they were trying to rack up false charges against her. In September 2003, Mr. Reta was coerced into signing a complaint against plaintiff by his supervisor, Brennan. Mr. Reta testified that Brennan orchestrated the complaint against plaintiff on his behalf. Mr. Reta told Captain Penner that the complaint was created by Brennan. Mr. Retas complaint did not rise to the level that needed to be investigated, and it was dropped.

Plaintiff was transferred to the Mens Central Jail facility on October 22, 2003. According to plaintiff, when she was transferred, she was not provided a chair, a computer, or office supplies. It was three to six weeks before plaintiff was provided a computer. Plaintiff was told that she was transferred to the Mens Central Jail facility because of complaints made against her by two fellow employees. The complaint by Leal Inez against plaintiff was later determined to be unresolved and, as noted above, the complaint by Mr. Reta was dropped.

C. The Countys Motion for Summary Judgment

On August 13, 2004, plaintiff filed her complaint against the County asserting five causes of action under 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.

On August 12, 2005, the trial court granted the Countys motion for summary judgment. On August 19, 2005, plaintiff filed a motion for reconsideration based on the Supreme Courts then recent decision in Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028 (Yanowitz). On its own motion, the trial court undertook to reconsider its order granting summary judgment in light of Yanowitz.

On November 10, 2005, the trial court held a hearing to reconsider its prior order granting summary judgment, during which hearing it sustained the Countys written objection to plaintiffs exhibit D (the June 8, 2004, letter from the County to plaintiff informing her that her complaint to Captain Penner was founded). The trial court also sustained the Countys oral objection to the declaration of Joel Reta.[6] [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 Joel 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 personal knowledge and observations, whatever he stated, the court does consider.[7]

After hearing oral argument, the trial court again granted the Countys motion for summary judgment as to all causes of action. On December 16, 2005, the trial court entered judgment on its order granting summary judgment.

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.)

B. The Countys Objection to the Declaration of Joel Reta

The County asserts generally that the trial court sustained its objection to the declaration of Joel Reta. The implication of that assertion is that we should not consider Mr. Retas testimony in reviewing the trial courts order granting summary judgment in favor of the County. Because plaintiff relies on that testimony in support of her arguments on appeal, we must determine the effect, if any, of the Countys objection on the admissibility of Mr. Retas testimony.

The Countys blanket objection to Mr. Retas declaration was, in effect, an objection based on lack of personal knowledge. (See Code Civ. Proc. 437c, subd. (d) [[D]eclarations shall be made . . . on personal knowledge . . . and shall show affirmatively that the affiant is competent to testify to the matters stated in the [declaration]].) In ruling on the Countys objection, the trial court indicated that it would consider testimony in Mr. Retas declaration that was based on personal knowledge and observations. Although the declaration does not include the customary prefatory statement that the facts stated therein are based upon personal knowledge, the context of Mr. Retas testimony concerning Brennans coercion of him to file a false complaint and his subsequent report to Captain Penner about the coercion suggests he did have personal knowledge of those matters. We must therefore consider that testimony in conducting our de novo review of the trial courts ruling. (Code Civ. Proc. 437c, subd. (c) [In determining whether the papers show that there is no triable issue as to any material fact, the court shall consider all the evidence set forth in the papers, except that to which objections have been made and sustained by the court . . .].)

C. Statute of Limitations

The County contends plaintiffs evidence of incidents that occurred prior to July 1, 2003, is barred under the one-year limitations period in section 12960. Citing Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, the County argues that any acts of discrimination or harassment that occurred more than a year prior to the July 1, 2004, filing of her administrative complaint with DFEH are not actionable and, presumably, not relevant to plaintiffs claims of race discrimination, racial harassment, age discrimination, and retaliation. Plaintiff asserts that the continuing violation doctrine[8]applies to prevent the application of the statute of limitations.

We do not need to resolve the statute of limitations/continuing violation issue because plaintiff has submitted evidence that within the one-year period of limitations ( 12960, subd. (d)), Brennan coerced a coworker, Joel Reta, to sign a false complaint against plaintiffi.e., in September of 2003.[9] The deliberate coercion of a subordinate to file a false complaint against another employee can constitute an adverse employment action. (See Yanowitz, supra, 36 Cal.4th at pp. 1053-1054, 1060-1061.) The United States Supreme Court, in National Railroad Passenger Corporation v. Morgan (2002) 536 U.S. 101, 112 (National Railroad), suggested that an act within the period of limitations 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 period of limitations is admissible as relevant background evidence to show, inter alia, a racial motivation for the discrete act. (Id.) Therefore, plaintiffs evidence of racial animus and complaints that may have occurred outside the limitations period is relevant to showing the reason Brennan coerced Mr. Reta to make a false complaint, even assuming, arguendo, the evidence of those incidents is not independently actionable because of the statute of limitations.

D. There Are Triable Issues Concerning Plaintiffs First Cause of Action for Race Discrimination

1. The McDonnell Douglas Burden Shifting Analysis

Plaintiff contends that there are triable issues of fact concerning her claim of race discrimination under FEHA because she suffered adverse job actions that were racially motivated, and the County has insufficient evidence of a race-neutral, nondiscriminatory reason for those actions. The County―in addition to arguing that any incidents that occurred prior to July 1, 2003, are time-barred―contends that plaintiff failed to establish that she suffered an adverse job action and that she failed to overcome the Countys evidence of a nondiscriminatory reason for any asserted adverse job action.

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^[10] test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354.) Under this 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 he 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 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 to offer any other evidence of discriminatory motive. (Guz, supra, 24 Cal.4th at pp. 355-356.)

2. 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 is her testimony that she was relocated to the Mens Central Jail facility with no computer or necessary office supplies.

Section 12940, subdivision (a) provides in pertinent part that it is an unlawful employment practice for an employer, because of the race . . . 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, subdivision (a)] . . . . Yanowitz, supra, 36 Cal.4th at pp. 1054-1055.

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 had adopted a materiality test for determining whether an employment action is adverse for purposes of 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 applying the materiality test to the facts before it, the court in Taylor concluded that there were sufficient disputed facts to raise triable issues concerning whether the plaintiff had been subjected to adverse employment actions. (Taylor, supra, 144 Cal.App.4th at pp.1232-1233.)

Here, when plaintiffs evidence is viewed under the materiality test, considering the totality of the circumstances andin the light most favorable to plaintiff, there are sufficient facts to raise a triable issue as to whether she suffered an adverse employment action i.e., adverse treatment that is reasonably likely to impair a reasonable employees job performance. (Yanowitz, supra, 36 Cal.4th at pp. 1054-1055.). As discussed above, Brennans act of coercing Mr. Reta to file a false complaint against plaintiff is sufficient to raise a triable issue of fact concerning whether plaintiff suffered an adverse employment action. A reasonable trier of fact could infer that plaintiffs job performance was unreasonably affected by that single, but serious action against plaintiff.

3. The Countys Evidence of a Nondiscriminatory Reason for the Adverse Employment Actions

The County contends that, even if plaintiff can make a prima facie showing of race discrimination, the County provided adequate evidence of a nondiscriminatory reason for any alleged adverse employment actions. Specifically, the County contends that Captain Penner transferred plaintiff to the Mens Central Jail facility pursuant to Department policy after two coworkers lodged complaints about plaintiff. The County further contends that its evidence shows that Brennan did not dramatically curtail plaintiffs teaching assignments, and instead divided assignments equitably among nursing instructors, without regard to age, race, ethnicity, or gender. Although the Countys evidence may be sufficient to show a nondiscriminatory reason for the transfer to the Mens Central Jail facility and a nondiscriminatory basis for plaintiffs teaching assignments, it does not address the coerced complaint filed by Mr. Reta in September 2003.

As discussed above, that act of coercion by Brennan could reasonably be construed as an adverse employment action that was arguably motivated by racial animus. But the County did not offer any explanation for that action, much less a nondiscriminatory motive. Thus, at least as to the false complaint about plaintiff filed by Mr. Reta, the County failed to carry its burden of showing a nondiscriminatory motive for that action.

4. The Evidence of Pretext and Requisite Racial Animus

Based on the flawed assertion that it provided sufficient nondiscriminatory reasons for all of the adverse employment actions upon which plaintiff relies, the County contends the ultimate burden of proving actual race discrimination shifted to plaintiff, and she submitted no evidence sufficient to raise a triable issue of fact concerning pretext or the requisite racial animus. Plaintiff contends that her evidence shows that the adverse job actions against her were motivated by a racial animus.

The declaration of Mr. Reta, if believed by a trier of fact, would support a reasonable inference that Brennan harbored some animus or ill-will towards plaintiff and wanted to affect adversely plaintiffs employment with the County. And Mr. Retas testimony about Brennans ebonics comment, when coupled with plaintiffs testimony that Brennan made derogatory remarks about other African American coworkers, constitutes independent evidence of a racial animus. Thus, the entirety of plaintiffs evidence, when viewed in a light most favorable to her, suggests that Brennans coercion of Mr. Retas false complaint may have been racially motivated. Accordingly, plaintiff has raised triable issues of fact as to her claim for race discrimination.

E. There Are Triable Issues Concerning Plaintiffs Second Cause of Action for Racial Harassment, and Brennan Is Not Immune from Liability on that Claim

1. Triable Issues Concerning Hostile Work Environment

The County contends that plaintiffs evidence of racial harassment does not rise to the level of the severe or pervasive conduct required to state a claim under 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 working environment.

In California, [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. (Gov. Code, 12940, subd. (h).) 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. Veriflo Corp. (1998) 67 Cal.App.4th 457, 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, supra, 106 Cal.App.4th at pp. 32-33, 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, it is your Filipino understanding versus mine. (Id. at p. 33.)

In reversing summary judgment on her racial harassment claim under 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 pp. 36-37.) Based on the evidence of a single racial slur, the Dee court held that 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.)

As discussed above, the false complaint by Mr. Reta that Brennan coerced him to file occurred within the limitations period, and a reasonable trier of fact could have concluded that it unreasonably interfered with plaintiffs job performance. Based on the evidence of Brennans racial animus that occurred prior to Mr. Retas complaint, a trier of fact could also have concluded that Brennans act of coercing the complaint was racially motivated. Thus, that complaint within the limitations period, when coupled with plaintiffs evidence of prior acts of racial animus, raises a triable issue of fact as to whether Brennans conduct was sufficiently pervasive or severe so as to subject plaintiff to a hostile work environment. As noted, because the coerced complaint by Mr. Reta occurred during the limitations period, it is not subject to the Countys statute of limitations defense.

2. Brennan Is Not Immune Under Section 820.2

Brennan argues that under section 820.2^[11] 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 contends 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 977-978.)

The Supreme Court in Caldwell, supra, 10 Cal.4th 972, reversed, holding that as a matter of law, the decision by members 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.)

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 determination 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 act of coercing Mr. Reta to file a false complaint against plaintiff was not a basic policy decision made by a member of a quasi-legislative body. It was an individual decision of an employees supervisor that, if made with an unlawful motive such as racial animus, is actionable under FEHA. Citing the Supreme Courts earlier observation in Johnson v. State of California (1968) 69 Cal.2d 782, 787-790 (Johnson), the court in Caldwell, supra, 10 Cal.4th 972 agreed that almost all acts involve some choice among alternatives, and the statutory immunity [under section 820.2] thus 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 coercion of Mr. Reta to file a false complaint fell clearly on the operational side of the line drawn in Johnson and confirmed in Caldwell. Therefore, because that act was not related to a basic policy decision, 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 decision[s] made at the planning stage of [the entitys] operations, rather than routine duties incident to the normal operations of the employees office or position].)

F. There Are Triable Issues of Fact Concerning Plaintiffs Fifth Cause of Action for Retaliation

As its contentions concerning plaintiffs race discrimination and racial harassment claims, the County contends that plaintiffs retaliation claim fails because there is insufficient evidence of an adverse job action, plaintiff failed to raise a triable issue about pretext or a retaliatory motive, and any incidents in support of the retaliation claim that occurred prior to July 1, 2003, are time-barred.

Brennans act of coercing Mr. Reta to file a false complaint against plaintiff occurred within the limitations period and, as noted, could reasonably be construed as an adverse employment action against plaintiff. Prior to that act, plaintiff had twice complained to Brennans supervisors about Brennans racially motivated mistreatment of plaintiff and others. Following plaintiffs first complaint to Captain Barrantes, Brennan confronted plaintiff stating, Nobody screws me!―I will screw you back!―I wont forget you and Captain Barrantes can kiss my ass! The evidence of plaintiffs complaints about Brennans behavior, together with Brennans subsequent act of coercing Mr. Reta to lodge a false complaint, was sufficient to raise a triable issue of fact concerning whether Brennans act of coercion was in retaliation for plaintiffs prior complaints about Brennan.[12]

G. 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 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 [plaintiffs] race and age. Plaintiff argues that her claim under section 12940, subdivision (k) for failure to prevent discrimination, harassment, or retaliation is reasonably related to the claims against the County as stated in her administrative complaint. But the claims in plaintiffs administrative complaint seek to hold the County directly liable for differential treatment and harassment. As such, those claims implicate plaintiffs primary statutory right to be free from harassment, retaliation, and differential treatment in the workplace under FEHA. Plaintiffs claim against the County under section 12940, subdivision (k), however, appears to implicate a distinct primary right under FEHA―the right to have allegations of harassment and differential treatment timely investigated and, if appropriate, to have the employer take reasonable steps to prevent the alleged unlawful conduct.

Although plaintiffs administrative complaint put the County on notice that plaintiff was seeking to hold the County directly liable for the alleged unlawful acts of Brennan and other County employees, it gave no notice to the County that it had failed to investigate or prevent claims of harassment or differential treatment. Given that the basis for liability stated in her administrative complaint involves different primary rights and obligations than her section 12940, subdivision (k) claim, plaintiff has failed to exhaust her administrative remedies as to that latter claim against the County, and summary adjudication of that claim as a matter of law was appropriate.

H. There Are No Triable Issues of Fact Concerning Plaintiffs Fourth

Cause of Action for Age Discrimination

Plaintiff contends that Brennans request that she demote and her statement that she wanted younger instructors in the classroom―both of which took place in either late 2000 or 2001 when Brennan assumed supervision of the MSD Unit―raise triable issues as to whether the asserted adverse employment actions were motivated, at least in part, by her age. In response, the County argues, inter alia, that any age-related incidents that occurred prior to July 1, 2003, are time-barred.

Unlike her claims for race discrimination, racial harassment, and retaliation, plaintiffs age discrimination claim cannot be predicated on Mr. Retas coerced complaint against her because there are insufficient facts showing that plaintiffs age motivated Brennan to coerce that complaint. The only fact arguably related to age bias is Brennans comment to plaintiff in either 2000 or 2001 that plaintiff was an older instructor and Brennan wanted younger instructors in the classroom. But that isolated comment was too vague and remote in time to raise a triable issue of fact as to whether Brennans act of coercing Mr. Reta to complain falsely about plaintiff was based on plaintiffs age.Therefore, the County is entitled to summary adjudication on the fourth cause of action for age discrimination.

DISPOSITION

The judgment in favor of the County is reversed and the matter is remanded to the trial court with instructions to modify its order on the Countys summary judgment/adjudication motion to reflect the denial of that motion as to the first, second, and fifth causes of action. No costs are awarded.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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[1] Government Code section 12900, et seq.

[2] All further statutory references are to the Government Code unless otherwise stated.

[3] At the time Brennan was assigned as supervisor of the MSD Unit, the Departments Medical Services personnel included approximately 600 registered nurses, licensed vocational nurses, certified nurse attendants, and registered nurse practitioners, in addition to physicians and mental health clinicians.

[4] Plaintiffs separate statement asserts that Brennan was assigned to the MSD Unit in December 2001, but plaintiffs declaration testimony in support of that fact asserts that Brennan was assigned in October or November 2001. The Countys separate statement and supporting evidence state that Brennan was assigned to the MSD Unit in December 2000.

[5] On June 8, 2004, the Department issued a letter to plaintiff that indicated that [a]n investigation and subsequent review by the Departments Equity Oversight Panel has established that your allegations are founded. But, as discussed below, the trial court sustained the Countys objection on reconsideration of the motion to plaintiffs exhibit D, the June 8, 2004, letter to plaintiff from the County. Plaintiff does not challenge that evidentiary ruling on appeal. We refer to this letter only as being part of plaintiffs submission.

[6] In its June 23, 2005, reply brief in support of its original motion, the County objected to the declaration testimony of Mr. Reta concerning other acts of misconduct by Brennan on the grounds that plaintiff admitted she had no knowledge of any alleged misconduct [by Brennan] toward Mr. Reta.

[7] The trial court subsequently reduced its ruling on the Countys evidentiary objections to a written order.

[8]Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798.

[9] As noted, the administrative complaint was filed with DFEH on July 1, 2004.

[10]McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.

[11] Section 820.2 reads: Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.

[12] As to those causes of action that we hold have triable issues of fact, we do not address the other factual contentions raised by plaintiff in support of her appeal.

[13] Section 12940, subdivision (k) provides that it shall be an unlawful employment practice for an employer . . . to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.