Supreme Court of California Justia
Docket No. S114097

Miller v. Dept. of Corrections


Filed 7/18/05

IN THE SUPREME COURT OF CALIFORNIA

EDNA MILLER et al.,
Plaintiffs
and
Appellants,
S114097
v.
Ct.App.
3
C
040262
DEPARTMENT OF CORRECTIONS et al., )

Sacramento
County
Defendants and Respondents. )
Super. Ct. No. 99AS03354

Plaintiffs, two former employees at the Valley State Prison for Women,
claim that the warden of the prison at which they were employed accorded
unwarranted favorable treatment to numerous female employees with whom the
warden was having sexual affairs, and that such conduct constituted sexual
harassment in violation of the California Fair Employment and Housing Act
(FEHA). (Gov. Code, § 12900 et seq.) The trial court granted summary judgment
in favor of defendants, concluding that the conduct in question did not support a
claim of sexual harassment, and the Court of Appeal affirmed. We must
determine whether, in light of the evidence presented in support of and in
opposition to the summary judgment motion, the lower courts properly found that
plaintiffs failed to present a prima facie case of sexual harassment under the
FEHA.
For the reasons explained below, we conclude that, although an isolated
instance of favoritism on the part of a supervisor toward a female employee with



whom the supervisor is conducting a consensual sexual affair ordinarily would not
constitute sexual harassment, when such sexual favoritism in a workplace is
sufficiently widespread it may create an actionable hostile work environment in
which the demeaning message is conveyed to female employees that they are
viewed by management as “sexual playthings” or that the way required for women
to get ahead in the workplace is by engaging in sexual conduct with their
supervisors or the management. We further conclude that, contrary to the Court of
Appeal’s determination, the evidence presented in the summary judgment
proceedings was sufficient to establish a prima facie case of sexual harassment
under the appropriate legal standard, and thus that the Court of Appeal erred in
affirming the trial court’s grant of summary judgment in favor of defendants.
Accordingly, we shall reverse the judgment rendered by the Court of Appeal.
I
On June 15, 1999, plaintiffs Edna Miller and Frances Mackey1 brought this
action against the California Department of Corrections (Department), the Valley
State Prison for Women, Cal Terhune as Director of the Department, and various
unnamed persons (all of whom shall be referred to collectively as the Department
or defendants). In their first cause of action, Miller and Mackey alleged that
during their employment with the Department, they were subjected to sexual
discrimination and harassment in violation of the FEHA. They also alleged that
1
Having been informed that plaintiff Frances Mackey died in 2003, we have
substituted her son Sterling Odom as a party in his capacity as personal
representative of her estate. We have designated plaintiff Edna Miller as the lead
plaintiff and have retitled the case accordingly.
2

defendants retaliated against them for complaining about the discrimination and
harassment.2
On August 17, 2001, the trial court granted defendants’ motion for
summary adjudication of issues with respect to plaintiff Miller, except as to her
claim for disability discrimination. The court also granted summary judgment in
favor of defendants with respect to plaintiff Mackey. Miller voluntarily dismissed
her complaint as to her remaining cause of action for disability discrimination, and
judgment was entered in favor of defendants. This appeal followed.
The declarations, deposition transcripts, and other evidence submitted in
support of and in opposition to defendants’ motion for summary judgment and for
summary adjudication of issues disclose the following facts.
A
Plaintiff Edna Miller began working for the Department as a correctional
officer in 1983. In 1994, while she was employed at the Central California
Women’s Facility (CCWF), she heard from other employees of the Department
that the chief deputy warden of the facility, Lewis Kuykendall, was having sexual
affairs with his secretary, Kathy Bibb, and with another subordinate, associate
warden Debbie Patrick. In her declaration, Miller stated that she often heard
Kuykendall at work arguing with Patrick concerning his relationship with Bibb.
Another Department employee at CCWF, Cagie Brown, told Miller that she, too,
was having an affair with Kuykendall. Brown admitted in her deposition that her
affair with Kuykendall began at CCWF in 1994.

2
The other causes of action were for sexual discrimination in violation of
public policy, retaliation in violation of public policy, disability discrimination in
violation of the FEHA and public policy (Miller), negligent retention and
promotion, invasion of privacy, assault and battery (Miller), false imprisonment
(Miller), defamation, and intentional infliction of emotional distress.
3



In 1994, plaintiff Miller complained to Kuykendall’s superior officer at the
CCWF, Warden Tina Farmon, about what she considered the “inappropriate
situation” created by Kuykendall’s relationships with Bibb, Brown, and Patrick.
Farmon informed Miller that she had addressed the issue.
In February 1995, the Department transferred plaintiff Miller to the Valley
State Prison for Women (VSPW), where Kuykendall now served as warden. In
May 1995, Miller served on an interview committee that evaluated Bibb’s
application for a promotion to the position of correctional counselor, a position
that would entail a transfer to VSPW. (Bibb by now was serving as an instructor
at CCWF.) When the interviewing panel did not select Bibb, Miller and other
members of the panel were informed by an associate warden that Kuykendall
wanted them to “make it happen.”3 Miller declared: “This was . . . the first of
3
The trial court sustained defendants’ hearsay objection to a similar
statement contained in Miller’s declaration, but our review of the record indicates
defendants failed to object to the deposition testimony reciting the same statement.
Defendant’s failure to object to the deposition testimony bars any hearsay
objection on appeal. (Code Civ. Proc., § 437c, subd. (b)(5) [“[e]videntiary
objections not made at the hearing shall be deemed waived”]; id., § 437c, subd.
(c); Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186-1187, fn. 1,
disapproved on another ground in Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 853, fn. 19; Ann M. v. Pacific Plaza Shopping Center (1993) 6
Cal.4th 666, 670, fn. 1.)

In this court, defendants complain that plaintiffs have referred to evidence
that was excluded by the trial court, although they fail to specify to which of
plaintiffs’ references they object. We have examined the trial court’s evidentiary
rulings and are satisfied that our statement of facts does not contain references to
evidence that was excluded by that court. Defendants claim that we should refer
only to facts that appear in the Court of Appeal’s opinion, on the ground that
plaintiffs did not petition for rehearing with respect to the Court of Appeal’s
recitation of facts. We are not persuaded. Although as a matter of policy we
normally will accept the Court of Appeal opinion’s statement of the facts (Cal.
Rules of Court, rule 28(c)(2)), our review of a grant of summary judgment or
summary adjudication is de novo and we examine the record independently of the
(footnote continued on following page)
4



many incidents which caused me to lose faith in the system . . . and to feel
somewhat powerless because of Kuykendall and his sexual relations with
subordinates.” There was evidence Bibb had bragged to plaintiff Mackey of her
power over the warden, and a departmental internal affairs investigation later
concluded Kuykendall’s personal relationship with Bibb rendered his involvement
in her promotion unethical.
Bibb’s promotion was awarded despite the opposition of Patrick, who by
now also had been transferred to VSPW. Miller believed that, as a result of
Patrick’s sexual affair with Kuykendall, Patrick had been awarded the transfer to
VSPW and enjoyed unusual privileges, such as reporting directly to Kuykendall
rather than to her immediate superior.
Miller confronted Brown, who now also was employed at VSPW,
concerning Brown’s affair with Kuykendall. Brown, admitting the affair, bragged
about her power over Kuykendall and stated her intention to use this power to
extract benefits from him. Another Department employee, Frances Gantong,
confirmed that, prior to Brown’s transfer to VSPW, Brown told Gantong that
Kuykendall promised to secure Brown’s transfer to VSPW and to aid in her
promotion to the position of facility captain. Miller also claimed Brown received
special assignments and work privileges from Kuykendall, and Kuykendall’s
secretary, Sandra Tripp, agreed with this assessment. (Miller believed Tripp’s
employment had been terminated after she made Kuykendall and Brown’s affair
public.)

(footnote continued from preceding page)
Court of Appeal and the trial court. We consider “all of the evidence the parties
offered in connection with the motion (except that which the court properly
excluded) . . . .” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
5



In July 1995, Brown and Miller competed for a promotion to a temporary
post as facility captain at VSPW. Brown announced to Miller that Kuykendall
would be forced to give her, Brown, the promotion or she would “take him down”
with her knowledge of “every scar on his body.” Kuykendall served on the
interview panel, conduct that the departmental internal affairs investigation report
later branded unethical because of his sexual relationship with Brown. Brown
received the promotion, despite Miller’s higher rank, superior education, and
greater experience. According to Miller’s deposition, the officers involved in the
selection process expressed surprise that Brown had been promoted, because they
had recommended Miller for the higher position, and these officers and other
employees commented to Miller that Brown’s selection was unfair. According to
plaintiff’s estranged husband, William Miller, also a Department employee, many
employees were upset by Brown’s promotion. They attributed the promotion to
the sexual affair between Kuykendall and Brown, believing Brown to be
unqualified. Brown and Miller later competed for promotion to a permanent
facility captain position, and Brown again secured the promotion.
Within a year and a half, Brown was promoted to the position of associate
warden, a pace of promotion that was unusually rapid. Kuykendall again served
on the interview panel. Miller’s failure to be promoted to the position of facility
captain made her ineligible to compete for higher-ranking positions, and Brown
became her direct supervisor. According to Cooper, the internal affairs
investigator, William Miller informed Cooper that other employees were outraged
by the pace of Brown’s promotions and “employees were saying things like, what
do I have to do, ‘F’ my way to the top?”
Miller stated in her deposition that she was afraid of complaining, because
of the adverse employment actions taken against two other female employees who
6

had complained concerning the warden’s affairs, Frances Gantong and Sandra
Tripp.
Department employees were aware of all three of Kuykendall’s sexual
affairs at CCWF and VSPW, according to the Department’s internal affairs
investigation and the declarations and deposition testimony of employees. The
internal affairs report noted that, as to Bibb and Brown, “[b]oth relationships were
viewed by staff as unethical from a business practice standpoint and one [sic] that
created a hostile working environment.” During his investigation, internal affairs
investigator Cooper encountered several employees who believed that persons
who had sexual affairs with Kuykendall received special employment benefits. In
her deposition, Cagie Brown acknowledged that there were widespread rumors
that sexual affairs between subordinates and their superior officers were “common
practice in the Department of Corrections” and that there were rumors that
employees, including Bibb, secured promotion in this way.
Kuykendall conceded he had danced with Bibb at work-related social
gatherings and there was evidence he telephoned her at home hundreds of times
from his workplace. Employees, including Mackey and Miller, witnessed Bibb
and Kuykendall fondling each other on at least three occasions at work-related
social gatherings occurring between 1991 and 1998 where employees of the
institution were present. One Department employee, Phyllis Mellott, also
complained that at such a gathering Kuykendall had put his arms around her and
another employee and made unwelcome groping gestures. Kuykendall was
present with Bibb in 1998 when she was arrested for driving under the influence of
alcohol, a circumstance of which Miller and other employees were aware.
Kuykendall failed to initiate an internal affairs investigation concerning the
incident or report his own involvement. He also conceded he had heard
7

complaints that Patrick received favorable treatment because of her relationship
with him.
Plaintiffs presented evidence that the three women who were having sexual
affairs with Kuykendall ― Patrick, Bibb, and Brown ― squabbled over him,
sometimes in emotional scenes witnessed by other employees, including Miller.
Miller experienced additional difficulties when chief deputy warden Vicky
Yamamoto arrived at VSPW and interfered with Miller’s direct access to the
warden. Miller initially believed the conflict between the two women was not
gender based, but came to believe that Yamamoto’s subsequent interference with
Miller’s authority occurred because Miller had refused dinner invitations that
Yamamoto did not extend to male employees. Miller refused these invitations
because she had heard that Yamamoto was a lesbian, and Miller assumed
Yamamoto’s interest in her was sexual. Rumors circulated among prison
employees that Yamamoto and Brown were engaged in a relationship that was
“more than platonic.”
According to Miller, in 1997, during a peer review audit at another prison,
Miller complained to Gerald Harris, a chief deputy warden at the facility who also
served as a sexual harassment advisor for the Department, concerning
Kuykendall’s sexual relationship with Brown and Brown’s close relationship with
Yamamoto, adding that Yamamoto was disrupting the work of the institution and
that Kuykendall had not disciplined Yamamoto. In her declaration, plaintiff
Miller stated she informed Harris that “I felt I was working in a hostile
environment based on the sexual relationship between Brown and Kuykendall and
the close relationship between Brown and Yamamoto.” Following her meeting
with Harris, Miller complained to Kuykendall concerning Brown and Yamamoto’s
interference with her duties.
8

According to Miller, after her complaint to Kuykendall, Brown and
Yamamoto made Miller’s work life miserable and diminished her effectiveness by
frequently countermanding her orders, undermining her authority, reducing her
supervisorial responsibilities, imposing additional onerous duties on her, making
unjustified criticisms of her work, and threatening her with reprisals when she
complained to Kuykendall about their interference.
In September 1997, Miller telephoned Brown to confront Brown
concerning her relationship with Kuykendall and to complain about the
mistreatment she had suffered at the hands of Brown and Yamamoto. During this
conversation, which Miller permitted Mackey and others to overhear, Brown
acknowledged that Yamamoto was heaping unjustified abuse on Miller and that
Kuykendall was aware of Yamamoto’s mistreatment of Miller but would do
nothing to rectify the situation. Miller subsequently informed Cooper, the internal
affairs investigator, that during this telephone conversation Miller had threatened
to make a public announcement concerning the affair between Brown and
Kuykendall.
The next day, Brown accused Miller of tape-recording their telephone
conversation. Brown entered Miller’s office, ordered plaintiff Mackey (Miller’s
assistant) to leave, and then physically assaulted Miller, holding her captive for
two hours. When Mackey went to Yamamoto to secure assistance for Miller,
Yamamoto did not intervene. When Miller reported the affray to Kuykendall and
threatened to report his relationship with Brown to higher authorities within the
Department, Kuykendall responded that no one would believe her. Kuykendall
told Miller to take time off from work and that upon her return she would not be
required to report to Brown or Yamamoto. He subsequently awarded her a
promotion. Kuykendall failed to investigate the assault after Miller complained to
him. The internal affairs investigation concluded that Brown had committed
9

assault and false imprisonment and that Kuykendall’s failure to intervene or to
discipline Brown constituted a violation of Department policy.
Brown and Yamamoto continued to interfere with Miller’s work. Miller
made further complaints to Kuykendall in 1998, eventually stating she planned to
file a harassment complaint. Kuykendall explained there was nothing he could do
about the harassment, because of his relationship with Brown and Brown’s
relationship with Yamamoto. He complained of Brown’s untrustworthiness,
stating he was “finished” with Brown and adding, “I should have chose[n] you.”
Miller understood these words to mean “he should have chose[n] me to have a
relationship with,” explaining, “I knew what he meant. He didn’t say what, but he
meant as a relationship. That’s what I took it as.” When Miller announced she
intended to file a harassment complaint against Kuykendall for his failure to
control Brown and Yamamoto, Kuykendall advised her not to do so, stating she
would only cause an ugly scandal. Miller continued that thereafter, “[p]retty much
the institution was exploding . . . everybody was basically taking complaints to
Mr. Kuykendall, and that’s when [the Office of Internal Affairs] came into the
institution.”
Miller stated that she joined three other employees early in 1998 in
complaining confidentially to Lewis Jones, Kuykendall’s superior officer and the
Department’s regional administrator, concerning Yamamoto (and Kuykendall’s
failure to curtail Yamamoto’s abuse of Miller), stating that the “institution was out
of control.” She recalled that Jones stated “he was dealing with Mr. Kuykendall
on the disruption of the institution,” but Miller did not observe any follow-up. She
did not complain to Jones specifically about sexual harassment.
Later in 1998, regional administrator Jones recommended a departmental
Office of Internal Affairs investigation, which, as noted above, began investigating
misconduct on the part of Kuykendall, Yamamoto, and Brown. Miller was
10

required to cooperate, and she informed investigating officer Cooper of
Kuykendall’s sexual affairs with Brown, Bibb, and Patrick, and of the substance of
Brown’s statements to her. Despite Cooper’s assurance of confidentiality, Miller
soon found that Brown was aware of Miller’s statements, and Brown began a
campaign of ostracism against Miller. According to Miller’s declaration and
deposition testimony, Yamamoto also harassed Miller with unannounced
inspections and interference with her orders; Kuykendall withdrew
accommodations that previously had been accorded Miller because of a physical
disability,4 and even the inmates appeared to believe that Miller had attempted to
have Kuykendall’s employment terminated. On one occasion, Brown angrily
confronted Miller about her statements to the internal affairs investigator, would
not allow Miller to terminate the conversation, and followed Miller home to
continue the harangue. Upon Miller’s complaint, a court order issued requiring
Brown to stay away from Miller.
Miller suffered increasing stress and resigned from the Department on
August 5, 1998. She filed a government tort claim with the Department in
November 1998, followed by a complaint with the Department of Fair
Employment and Housing in March 1999. She filed her complaint in superior
court on June 15, 1999.
As a result of the internal affairs investigation, Kuykendall retired,
Yamamoto was transferred and demoted, and Brown resigned with disciplinary
proceedings pending.

4
As noted, Miller also filed a disability discrimination claim. In October
1995, Miller was diagnosed with sarcoidosis, and the resulting inflammation
affected her ability to walk. Initially, Kuykendall met her need for a flexible
schedule and made other accommodations, but late in 1998 these accommodations
began to be withdrawn.
11



B
Plaintiff Frances Mackey joined the Department in 1975 as a clerk and
received a number of promotions. She was transferred to VSPW in 1996 as a
records manager, with the promise that she would continue to receive “inmate
pay” (which apparently comprised certain enhanced salary benefits that emanate
from handling inmates directly). At her interview for the new position, she
announced her ambition to be promoted to a position as a correctional counselor.
Kuykendall told her if she improved the VSPW records office, he would award her
such a promotion.
Mackey was aware of Kuykendall’s sexual affairs with Bibb and Brown.
In July 1997, Mackey learned that Brown, then associate warden of VSPW,
believed Mackey had complained to Kuykendall concerning the sexual affair he
was having with Brown. Mackey’s supplemental “inmate pay” was withdrawn.
Brown also subjected Mackey to verbal abuse in the presence of coworkers.
Mackey believed these actions constituted a warning not to disclose the affair
between Kuykendall and Brown. Mackey was certain that Brown was promoted
to the position of associate warden not because of merit, but because of her sexual
affair with Kuykendall. Mackey claimed Brown demeaned her in the presence of
other employees and impeded the execution of Mackey’s duties in various
respects, and stated: “This situation created hostility among the employees in
[Mackey’s] Department.” As observed by the Court of Appeal, “[t]he
environment around the office became increasingly hostile because of
Kuykendall’s inability to control Brown.” Mackey “felt powerless to take any
action about the situation.” Mackey was persuaded not to jeopardize her career,
having observed the termination of the employment of another woman who had
complained about Kuykendall’s “improper affair.” In September 1997, Mackey
overheard Brown’s telephone call to Miller and the next day observed Brown’s
12

physical assault on Miller. Mackey attempted to intervene to assist Miller. Miller
told Mackey the assault occurred after she informed Brown she planned to
complain concerning Brown’s relationship with Kuykendall and “how it was
affecting her career.” Brown continued to demean Mackey in the presence of
other employees and to interfere with the execution of her duties.
According to Mackey, correctional employee Greg Mellott told Mackey
that his wife, also a correctional employee, had heard arguments between Bibb and
Brown concerning Kuykendall. In her declaration, Mackey stated that “Greg
Mellott revealed to me that the sexual relationships Kuykendall was having with
Bibb and Brown [were] creating an impossible environment for his wife to work
in” and that his wife had filed a complaint “about the improper practices she
experienced in her employment.”
Mackey was assured that her statements to the internal affairs investigator
would be kept confidential, but they were not. Kuykendall subsequently reduced
her responsibilities and denied her access to the work experience she needed in
order to be promoted to the position of correctional counselor. Mackey testified in
her deposition that she believed she failed to receive a promotion to that position
because she was not sexually involved with Kuykendall.
In addition, Brown repeatedly interrogated Mackey about her statements to
the internal affairs investigator and attempted to contact Mackey outside of work.
Stress led to health problems, and Mackey was unable to work between August
1998 and January 1999. Upon her return to work, Mackey was demoted and
suffered further mistreatment and humiliation. A few months later she resigned,
finding the conditions of employment intolerable. Mackey filed a government tort
claim with the Department in February 1999 and filed a complaint with the
Department of Fair Employment and Housing in March 1999. Mackey joined
13

Miller in filing suit on June 15, 1999, alleging, among other claims, sexual
discrimination and retaliation in violation of the FEHA.
C
As noted, defendants moved for summary judgment or summary
adjudication of issues. The trial court determined the evidence of the warden’s
sexual favoritism did not constitute discrimination or harassment under the FEHA
and rejected plaintiffs’ retaliation claim. Miller’s cause of action for disability
discrimination survived, but summary adjudication in favor of defendants was
awarded on the remaining claims. Miller subsequently dismissed her complaint
with its single remaining cause of action for disability discrimination; the court
entered judgment in favor of defendants, and plaintiffs appealed.
The Court of Appeal affirmed, concluding that a supervisor who grants
favorable employment opportunities to a person with whom the supervisor is
having a sexual affair does not, without more, commit sexual harassment toward
other, nonfavored employees. According to the Court of Appeal, plaintiffs were in
the same position as male employees who failed to acquire the benefits that
Kuykendall accorded to Bibb, Patrick, and Brown. With respect to the claim that
Kuykendall’s behavior created an actionable hostile work environment, the
appellate court observed: “Ignoring for the moment evidence of retaliation for
threatened, or actual, reporting of the relationships, plaintiffs have demonstrated
unfair conduct in the workplace by virtue of Kuykendall’s preferential treatment
of his various sexual partners. However, beyond the fact of those relationships
and the preferential treatment, plaintiffs have not shown a concerted pattern of
harassment sufficiently pervasive to have altered the conditions of their
employment on the basis of sex. Plaintiffs were not themselves subjected to
sexual advances, and were not treated any differently than male employees at [the
14

prison]. Hence the trial court correctly concluded there is no evidentiary basis for
plaintiffs’ various sex discrimination and harassment claims.”
With respect to plaintiffs’ claim that defendants retaliated against them
because they protested practices forbidden by the FEHA, the Court of Appeal
concluded that defendants properly had prevailed on plaintiffs’ retaliation claim,
evidently because the appellate court found the record demonstrated that plaintiffs
did not exhibit a subjective belief, when they made their complaints, that they
were reporting conduct prohibited by the FEHA or that they were complaining of
sexual discrimination or sexual harassment.
II
A
We emphasize at the outset that the present case comes to us on appeal
from a grant of summary judgment and summary adjudication. A trial court
properly grants a motion for summary judgment only if no issues of triable fact
appear and the moving party is entitled to judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c); see also id., § 437c, subd. (f) [summary adjudication of
issues].) The moving party bears the burden of showing the court that the plaintiff
“has not established, and cannot reasonably expect to establish, a prima facie
case . . . .” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) On
appeal from the granting of a motion for summary judgment, we examine the
record de novo, liberally construing the evidence in support of the party opposing
summary judgment and resolving doubts concerning the evidence in favor of that
party. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138,
1142.)
15

B
The FEHA expressly prohibits sexual harassment in the workplace.5 It is
an unlawful employment practice “[f]or an employer . . . because of . . . sex . . . to
harass an employee . . . .” (Gov. Code, § 12940, subd. (j)(1).) The FEHA also
provides that “[sexual] [h]arassment of an employee . . . by an employee, other
than an agent or supervisor, shall be unlawful if the entity, or its agents or
supervisors, knows or should have known of this conduct and fails to take
immediate and appropriate corrective action.” (Ibid.) For the purposes of the
relevant provisions of the FEHA, “ ‘harassment’ because of sex includes sexual
harassment, gender harassment, and harassment based on pregnancy, childbirth, or
related medical conditions.” (Id., § 12940, subd. (j)(4)(C).)
According to the Fair Employment and Housing Commission (FEHC), the
agency charged with administering the FEHA, harassment on any basis prohibited
by the FEHA includes (but is not limited to) verbal harassment, including
“epithets, derogatory comments or slurs on a basis enumerated in the Act”;
5
Plaintiffs asserted claims for sexual discrimination and sexual harassment
under the FEHA. In their complaint, plaintiffs styled these claims as constituting a
single cause of action, and the Court of Appeal treated them as such. As we noted
in Reno v. Baird (1998) 18 Cal.4th 640, 646, 657, however, claims for sexual
discrimination and sexual harassment are distinct causes of action, each arising
from different provisions of the FEHA.

Plaintiffs based their sexual discrimination and harassment claim on the
same circumstances, and the thrust of their argument in the trial court, the Court of
Appeal, and this court has been that they were subjected to sexual harassment.
Observing that sexual harassment is a form of sexual discrimination (see
Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 348, and cases cited; see
also Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 129
[harassment on the basis of race is a form of employment discrimination]), the
Court of Appeal analyzed plaintiffs’ claim principally under the law applicable to
sexual harassment, and we shall do the same.
16



physical harassment, including “assault, impeding or blocking movement, or any
physical interference with normal work or movement, when directed at an
individual on a basis enumerated in the Act”; and visual harassment, including
“derogatory posters, cartoons, or drawings on a basis enumerated in the Act.”
(Cal. Code Regs., tit. 2, § 7287.6, subd. (b)(1)(A),(B) & (C).) The regulations also
specify that “[u]nwanted sexual advances which condition an employment benefit
upon an exchange of sexual favors” constitute harassment. (Id., § 7287.6, subd.
(b)(1)(D).) In the specific context of sexual discrimination, prohibited harassment
may include “verbal, physical, and visual harassment, as well as unwanted sexual
advances.” (Id., § 7291.1 subd. (f)(1).)
Past California decisions have established that the prohibition against sexual
harassment includes protection from a broad range of conduct, ranging from
expressly or impliedly conditioning employment benefits on submission to or
tolerance of unwelcome sexual advances, to the creation of a work environment that
is hostile or abusive on the basis of sex. (Fisher v. San Pedro Peninsula Hospital
(1989) 214 Cal.App.3d 590, 607-608; see also Mogilefsky v. Superior Court (1993)
20 Cal.App.4th 1409, 1414-1415.)6 Such a hostile environment may be created
even if the plaintiff never is subjected to sexual advances. (Mogilefsky v. Superior
6
Some cases draw a sharp distinction between the two types of harassment,
namely so-called quid pro quo and hostile work environment harassment. (See
Fisher v. San Pedro Peninsula Hosp., supra, 214 Cal.App.3d at p. 607.) Later
cases have acknowledged that the two theories of liability are intertwined. (See
Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 751; Mogilefsky v.
Superior Court
, supra, 20 Cal.App.4th at p. 1415; Bihun v. AT&T Information
Systems, Inc.
(1993) 13 Cal.App.4th 976, 1005 [characterizing the two types of
harassment as not distinct forms of harassment but “poles of a continuum”],
disapproved on another point in Lakin v. Watkins Associated Industries (1993) 6
Cal.4th 644, 664.)
17

Court, supra, 20 Cal.App.4th at pp. 1414-1415.) In one case, for example, a cause
of action based upon a hostile environment was stated when the plaintiff alleged she
had been subjected to long-standing ridicule, insult, threats, and especially exacting
work requirements by male coworkers who evidently resented a female employee’s
entry into a position in law enforcement. (Accardi v. Superior Court, supra, 17
Cal.App.4th at p. 347-348.)
We have agreed with the United States Supreme Court that, to prevail, an
employee claiming harassment based upon a hostile work environment must
demonstrate that the conduct complained of was severe enough or sufficiently
pervasive to alter the conditions of employment and create a work environment
that qualifies as hostile or abusive to employees because of their sex. (See Aguilar
v. Avis Rent A Car System, Inc., supra, 21 Cal.4th at p. 130, relying upon Harris v.
Forklift Systems, Inc. (1993) 510 U.S. 17, 21.) The working environment must be
evaluated in light of the totality of the circumstances: “[W]hether an environment
is ‘hostile’ or ‘abusive’ can be determined only by looking at all the
circumstances. These may include the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.” (Harris v. Forklift Systems, Inc., supra, 510 U.S. at p. 23.)
The United States Supreme Court has warned that the evidence in a hostile
environment sexual harassment case should not be viewed too narrowly: “[T]he
objective severity of harassment should be judged from the perspective of a
reasonable person in the plaintiff’s position, considering ‘all the circumstances.’
[Citation.] . . . . [T]hat inquiry requires careful consideration of the social context
in which particular behavior occurs and is experienced by its target. . . . The real
social impact of workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships which are not fully
18

captured by a simple recitation of the words used or the physical acts performed.
Common sense, and an appropriate sensibility to social context, will enable courts
and juries to distinguish between simple teasing or roughhousing . . . and conduct
which a reasonable person in the plaintiff’s position would find severely hostile or
abusive.” (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81-
82; see also Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 517-518.)
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., supra, 21 Cal.4th at pp. 129-130;
Beyda v. City of Los Angeles, supra, 65 Cal.App.4th at p. 517.) Although the
FEHA explicitly prohibits sexual harassment of employees, while Title VII does
not, the two enactments share the common goal of preventing discrimination in the
workplace. Federal courts agree with guidelines established by the Equal
Employment Opportunity Commission (EEOC), the agency charged with
administering Title VII, in viewing sexual harassment as constituting sexual
discrimination in violation of Title VII. (See Meritor Sav. Bank, FSB v. Vinson
(1986) 477 U.S. 57, 64-65.) In language comparable to that found in the FEHA
and in FEHC regulations, federal regulatory guidelines define sexual harassment
as including unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature that has the “purpose or effect of
unreasonably interfering with an individual’s work performance or creating an
intimidating, hostile, or offensive working environment.” (29 C.F.R.
§ 1604.11(a)(3).)
A lengthy policy statement issued by the EEOC has examined the question
of sexual favoritism, relying in part upon a number of federal court decisions that
have considered the kind of harassment claim brought by plaintiffs, namely one
19

based principally on the favoritism shown by supervisors to employees who are
the supervisors’ sexual partners. (Ofc. of Legal Counsel, Policy Guidance on
Employer Liability Under Title VII for Sexual Favoritism (Jan. 12, 1990)
No. N-915-048 in 2 EEOC Compliance Manual foll. § 615 (EEOC Policy
Statement No. N-915-048.) In its 1990 policy statement, the EEOC observed that,
although isolated instances of sexual favoritism in the workplace do not violate
Title VII, widespread sexual favoritism may create a hostile work environment in
violation of Title VII by sending the demeaning message that managers view
female employees as “ ‘sexual playthings’ ” or that “the way for women to get
ahead in the workplace is by engaging in sexual conduct.”7 We believe the policy
statement provides a useful guide in evaluating the issue before us.
The EEOC policy statement is entitled Policy Guidance on Employer
Liability under Title VII for Sexual Favoritism. It covers three topics: isolated
favoritism, favoritism when sexual favors have been coerced, and widespread
favoring of consensual sexual partners. The policy statement begins with an
explanation that “[a]n isolated instance of favoritism toward a ‘paramour’ (or a
spouse, or a friend) may be unfair, but it does not discriminate against women or
men in violation of Title VII, since both are disadvantaged for reasons other than
their genders. [Fn. omitted.] A female charging party who is denied an
employment benefit because of such sexual favoritism would not have been
treated more favorably had she been a man, nor, conversely, was she treated less
7
The policy statement was issued in 1990 by the EEOC and specifies that it
was approved by Clarence Thomas — then the Chairperson of the EEOC and now
an Associate Justice of the United States Supreme Court.
20

favorably because she was a woman.” (EEOC Policy Statement No. N-915-048,
supra, § A, italics added.)8
The policy statement next explains the commission’s position with respect
to coerced sexual activity, including the situation in which the coercion results in
employment benefits for a victim who is not complaining. Because coercion is not
alleged in the present case, this element of the policy statement is not relevant to
the question before us.
Finally, the EEOC discusses sexual favoritism that is more than isolated
and that is based upon consensual affairs: “If favoritism based upon the granting
of sexual favors is widespread in a workplace, both male and female colleagues
who do not welcome this conduct can establish a hostile work environment in
violation of Title VII regardless of whether any objectionable conduct is directed
at them and regardless of whether those who were granted favorable treatment
willingly bestowed the sexual favors. In these circumstances, a message is
implicitly conveyed that the managers view women as ‘sexual playthings,’ thereby
creating an atmosphere that is demeaning to women. Both men and women who
find this offensive can establish a violation if the conduct is ‘sufficiently severe or
pervasive “to alter the conditions of [their] employment and create an abusive
working environment.” ’ [Citations.] [Fn. omitted.] An analogy can be made to a
situation in which supervisors in an office regularly make racial, ethnic or sexual
jokes. Even if the targets of the humor ‘play along’ and in no way display that

8
This portion of the EEOC policy statement reflects the position of a great
majority of federal courts. (See DeCintio v. Westchester County Medical Center
(2d Cir. 1986) 807 F.2d 304, 308; see also Schobert v. Illinois Dept. of Transp.
(7th Cir. 2002) 304 F.3d 725, 733; Womack v. Runyon (11th Cir. 1998) 147 F.3d
1298, 1300; Taken v. Oklahoma Corp. Com’n. (10th Cir. 1997) 125 F.3d 1366,
1369-1370.)
21



they object, co-workers of any race, national origin or sex can claim that this
conduct, which communicates a bias against protected class members, creates a
hostile work environment for them. [Citations.]” (EEOC Policy Statement
No. N-915-048, supra, § C.)
In addition, according to the EEOC, “[m]anagers who engage in
widespread sexual favoritism may also communicate a message that the way for
women to get ahead in the workplace is by engaging in sexual conduct or that
sexual solicitations are a prerequisite to their fair treatment. [Fn. omitted.] This
can form the basis of an implicit ‘quid pro quo’ harassment claim for female
employees, as well as a hostile environment claim for both women and men who
find this offensive.” (EEOC Policy Statement No. N-915-048, supra, § C.)
To illustrate its point, the EEOC discussed Broderick v. Ruder (D.D.C.
1988) 685 F.Supp. 1269, in which the court concluded sexual favoritism
contributed to a hostile work environment that violated Title VII. The plaintiff, in
that case an attorney, alleged that two of her supervisors had given employment
benefits to two secretaries with whom they were conducting sexual affairs and that
another supervisor favored an attorney because of his sexual attraction to her. As
the EEOC also noted, there were “isolated” unwanted sexual advances made to the
plaintiff. The EEOC stressed the court’s discussion of sexual favoritism in the
workplace, which “undermined plaintiff’s motivation and work performance and
deprived plaintiff, and other . . . female employees, of promotions and job
opportunities.” (Broderick v. Ruder, supra, 685 F.Supp. at p. 1278; EEOC Policy
Statement No. N-915-048, supra, § C.) The EEOC policy statement commented
that, although the Broderick decision turned upon a hostile work environment
analysis, the facts also could have supported an implied quid pro quo claim “since
the managers, by their conduct, communicated a message to all female employees
22

in the office that job benefits would be awarded to those who participated in
sexual conduct. [Citations.]” (Ibid.)
The one pertinent California decision generally indicates that the standards
and reasoning embodied in the EEOC policy statement provide appropriate
guidelines in interpreting and applying the relevant provisions of the FEHA. In
Proksel v. Gattis (1996) 41 Cal.App.4th 1626, although the court rejected a claim
based upon favoritism arising from a single affair in a small office, it recognized
sexual favoritism could create a hostile environment. In dictum, the court in
Proksel suggested that sexual favoritism by a manager may be actionable when it
leads employees to believe that “they [can] obtain favorable treatment from [the
manager] if they became romantically involved with him” (id. at p. 1629), the
affair is conducted in a manner “so indiscreet as to create a hostile work
environment,” or the manager has engaged in “other pervasive conduct . . . which
created a hostile work environment.” (Id. at pp. 1629-1630.) The Court of Appeal
in Proksel cited the Broderick decision (Broderick v. Ruder, supra, 685 F.Supp.
1269) and another federal court decision suggesting that overt manifestations of
sexual favoritism may create a hostile work environment in violation of Title VII
when they convey the message that a woman cannot be “evaluated on grounds
other than her sexuality.” (Drinkwater v. Union Carbide Corp. (3rd Cir. 1990)
904 F.2d 853, 862; see id. at p. 861, fn. 15.) Indeed, the concept of conduct that
gives rise to a hostile work environment by creating a work atmosphere that is
demeaning to women is not new. (See Cal. Code Regs., tit. 2, § 7287.6, subd.
(b)(1)(C) [stating that harassment may include the posting of derogatory images];
Accardi v. Superior Court, supra, 17 Cal.App.4th at pp. 347-348; EEOC v.
Farmer Bros. Co. (9th Cir. 1994) 31 F.3d 891, 897 & fn. 3 [recognizing
demeaning gender-based conduct as sexual harassment]; Lipsett v. University of
23

Puerto Rico (1st Cir. 1988) 864 F.2d 881, 905 [recognizing the posting of lurid
images as sexual harassment].)
Following the guidance of the EEOC, and also employing standards
adopted in our prior cases, we believe that an employee may establish an
actionable claim of sexual harassment under the FEHA by demonstrating that
widespread sexual favoritism was severe or pervasive enough to alter his or her
working conditions and create a hostile work environment. (See Aguilar v. Avis
Rent A Car System, Inc., supra, 21 Cal.4th at p. 130.) Furthermore, applying this
standard to the circumstances of the present case, we conclude that the evidence
proffered by plaintiffs, viewed in its entirety, established a prima facie case of
sexual harassment under a hostile-work-environment theory. As we shall explain,
a trier of fact reasonably could find from the evidence in the record set forth below
that a hostile work environment was created in the workplace in question.
C
Over a period of several years, Warden Kuykendall engaged concurrently
in sexual affairs with three subordinate employees, Bibb, Patrick, and Brown.
There was evidence these affairs began in 1991 and continued until 1998. The
affairs occurred first while Kuykendall and the women worked at CCWF, then
continued when these individuals all transferred to VSPW. Kuykendall served in
a management capacity at both institutions and served as warden at VSPW. When
Kuykendall transferred from CCWF to VSPW, there was evidence he caused his
sexual partners to be transferred to the new institution to join him. There was
evidence Kuykendall promised and granted unwarranted and unfair employment
benefits to the three women. One of the unfair employment benefits granted to
Brown evidently was the power to abuse other employees who complained
concerning the affairs. When plaintiffs complained, they suffered retaliation (and
they believed two other employees were similarly targeted). Kuykendall refused
24

to intervene and himself retaliated by withdrawing previously granted
accommodations for Miller’s disability after she cooperated with the internal
affairs investigation.
Further, there was evidence that advancement for women at VSPW was
based upon sexual favors, not merit. For example, Kuykendall pressured Miller
and other employees on the personnel selection committee to agree to transfer
Bibb to VSPW and promote her to the position of correctional counselor, despite
the conclusion of the committee that she was not eligible or qualified. Committee
members were told to set aside their professional judgment because Kuykendall
wanted them to “make it happen.”
In addition, on two occasions Kuykendall promoted Brown to facility
captain positions in preference to Miller, although Miller was more qualified.
Brown enjoyed an unprecedented pace of promotion to the managerial position of
associate warden, causing outraged employees to ask such questions as, “What do
I have to do, ‘F’ my way to the top?” Even Brown acknowledged that affairs
between supervisors and subordinates were common in the Department and were
widely viewed as a method of advancement. Indeed, Brown made it known to
Miller that the facility captain promotion belonged to her because of her intimate
relationship with Kuykendall, announcing that if she were not awarded the
promotion she would “take him [Kuykendall] down” because she “knew every
scar on his body.”
There also was evidence that Kuykendall promoted Bibb from clerical to
correctional staff duties despite her lack of qualifications, and at the same time
refused to permit Mackey to secure the on-the-job training that would have
enabled her to make a similar advance. On the basis of her knowledge of
Kuykendall’s sexual affairs, Mackey believed the reason he denied her this
opportunity was that she was not his sexual partner.
25

The evidence suggested Kuykendall viewed female employees as “sexual
playthings” and that his ensuing conduct conveyed this demeaning message in a
manner that had an effect on the work force as a whole. Various employees,
including plaintiffs, observed Kuykendall and Bibb fondling one another on at
least three occasions at work-related social gatherings. One employee reported
that Kuykendall had placed his arm around her and another female employee
during one such social event, adding that Kuykendall had engaged in unwelcome
fondling of her as well. Bibb and Brown bragged to other employees, including
plaintiffs, of their power to extort benefits from Kuykendall. Jealous scenes
between the sexual partners occurred in the presence of Miller and other
employees. Several employees informed the internal affairs investigator that
persons who were engaged in sexual affairs with Kuykendall received special
benefits. When Miller last complained to Kuykendall, he told her that Brown was
manipulative, adding he was “finished” with Brown and should have chosen
Miller — a comment Miller reasonably took to mean that he should have chosen
Miller for a sexual affair.
There was evidence Kuykendall’s sexual favoritism not only blocked the
way to merit-based advancement for plaintiffs, but also caused them to be
subjected to harassment at the hands of Brown, whose behavior Kuykendall
refused or failed to control even after it escalated to physical assault. This
harassment, apparently retaliatory, included loss of work responsibilities,
demeaning comments in the presence of other employees, loss of entitlement to a
pay enhancement and to disability accommodation, and physical assault and false
imprisonment. Kuykendall explained to Miller that, because of his intimate
relationship with Brown, he would not protect plaintiffs. In this manner, his
sexual favoritism was responsible for the continuation of an outrageous campaign
of harassment against plaintiffs.
26

Considering all the circumstances “from the perspective of a reasonable
person in the plaintiff’s position” (Oncale v. Sundowner Offshore Services, Inc.,
supra, 523 U.S. at p. 81), and noting that the present case is before us on appeal
after a grant of summary judgment, we conclude that the foregoing evidence
created at least a triable issue of fact on the question whether Kuykendall’s
conduct constituted sexual favoritism widespread enough to constitute a hostile
work environment in which the “message [was] implicitly conveyed that the
managers view women as ‘sexual playthings’ ” or that “the way for women to get
ahead in the workplace is by engaging in sexual conduct” thereby “creating an
atmosphere that is demeaning to women.” (EEOC Policy Statement
No. N-915-048, supra, § C.) In terms we previously have borrowed from the
United States Supreme Court in measuring sexual harassment claims, there was
evidence of “ ‘sufficiently severe or pervasive’ ” conduct that “ ‘ “alter[ed] the
conditions of [the victims’] employment” ’ ” such that a jury reasonably could
conclude that the conduct created a work environment that qualifies as hostile or
abusive to employees because of their gender. (Aguilar v. Avis Rent A Car
System, Inc., supra, 21 Cal.4th at p. 130.)
D
In reaching its contrary conclusion, the Court of Appeal essentially
conceded that widespread sexual favoritism could support a claim for sexual
harassment if the accompanying conduct were sufficiently pervasive or severe, but
concluded plaintiffs had failed to make an adequate showing in this respect,
especially in the absence of any evidence that they had been sexually
propositioned or that the sexual affairs were nonconsensual. But California law
(like the EEOC policy statement quoted above) provides that plaintiffs may
establish the existence of a hostile work environment even when they themselves
have not been sexually propositioned. (Beyda v. City of Los Angeles, supra, 65
27

Cal.App.4th at p. 519; Fisher v. San Pedro Peninsula Hospital, supra, 214
Cal.App.3d at pp. 610-611; EEOC Policy Statement No. N-915-048, supra, § C,
example 3.) Further, as the EEOC policy statement points out, even widespread
favoritism based upon consensual sexual affairs may imbue the workplace with an
atmosphere that is demeaning to women because a message is conveyed that
managers view women as “sexual playthings” or that the way required to secure
advancement is to engage in sexual conduct with managers. In focusing upon the
question whether the sexual favoritism was coercive, the Court of Appeal
overlooked the principle that even in the absence of coercive behavior, certain
conduct creates a work atmosphere so demeaning to women that it constitutes an
actionable hostile work environment.
The Court of Appeal commented that the Broderick and Drinkwater
decisions discussed not only evidence of widespread sexual favoritism but also the
assertedly coercive effect of a supervisor’s sexual advances to the plaintiff and of
a generally sexually charged atmosphere. In Broderick, the court referred to
pervasive “conduct of a sexual nature” and noted isolated instances in which
sexual advances were made upon the plaintiff, but it also observed that the more
important consideration was the effect of sexual favoritism on the work
environment. (Broderick v. Ruder, supra, 685 F.Supp. at p. 1278.) Similarly, in
Drinkwater the court, although referring to an atmosphere of “sexual innuendo” or
a “sexually charged” work atmosphere created by a sexual affair, also explained
that “[t]he theoretical basis for the kind of environmental claim alleged here is that
the sexual relationship impresses the workplace with such a cast that the plaintiff
is made to feel that she is judged only by her sexuality.” (Drinkwater v. Union
Carbide Corp., supra, 904 F.2d at p. 861 & fn. 15.) Again, the important and
underlying inquiry in these cases was whether the conduct in question conveyed a
message that demeans employees on the basis of their sex.
28

Putting aside the question whether the Broderick and Drinkwater cases
properly can be distinguished from the circumstances of the present case, we
believe it is clear under California law that a plaintiff may establish a hostile work
environment without demonstrating the existence of coercive sexual conduct
directed at the plaintiff or even conduct of a sexual nature. (See Beyda v. City of
Los Angeles, supra, 65 Cal.App.4th at p. 519 [“ ‘The plaintiff’s work environment
is affected not only by conduct directed at herself but also by the treatment of
others’ ”]; Accardi v. Superior Court, supra, 17 Cal.App.4th at p. 345 [sexual
harassment under a hostile-work-environment theory “does not necessarily involve
sexual conduct. It need not have anything to do with lewd acts, double entendres
or sexual advances”; see also Oncale v. Sundowner Offshore Services, Inc., supra,
523 U.S. at p. 80 [“harassing conduct need not be motivated by sexual desire”];
Mogilefsky v. Superior Court, supra, 20 Cal.App.4th at p. 1414; 2 Chin et al., Cal
Practice Guide: Employment Litigation (The Rutter Group 2004) [¶][¶] 10:240-
10:246, pp. 10-40-10-41.) Finally, we believe that even those courts focusing on a
“sexually charged environment” would be satisfied that a triable issue of fact was
presented by the evidence in this case, in view of the bragging, squabbling, and
fondling that occurred.
We stress that, because this is an appeal from a grant of summary judgment
in favor of defendants, a reviewing court must examine the evidence de novo and
should draw reasonable inferences in favor of the nonmoving party. (Wiener v.
Southcoast Childcare Centers Inc., supra, 32 Cal.4th at p. 1142.) We believe the
Court of Appeal failed to draw such inferences and took too narrow a view of the
surrounding circumstances. (See Oncale v. Sundowner Offshore Services, Inc.,
supra, 523 U.S. at pp. 81-82; see also Beyda v. City of Los Angeles, supra, 65
Cal.App.4th at pp. 517-518; Accardi v. Superior Court, supra, 17 Cal.App.4th at
pp. 350-351.)
29

Defendants attempt to counter plaintiffs’ claims by referring to a number of
the cases holding that isolated preferential treatment of a sexual partner, standing
alone, does not constitute sexual discrimination. (See fn. 8, ante, at p. 21.) The
Court of Appeal also cited these cases. In such instances, the discrimination is
said to turn merely on personal preference, and male and female nonfavored
employees are equally disadvantaged. Although we do not dispute the principle
stated by these cases, we believe the Court of Appeal and defendants err in
equating the present case with those cases. Whether or not Kuykendall was
motivated by personal preference or by discriminatory intent, a hostile work
environment was shown to have been created by widespread favoritism. As
discussed, plaintiffs in the present case alleged far more than that a supervisor
engaged in an isolated workplace sexual affair and accorded special benefits to a
sexual partner. They proffered evidence demonstrating the effect of widespread
favoritism on the work environment, namely the creation of an atmosphere that
was demeaning to women. Further, as the EEOC policy statement observes, an
atmosphere that is sufficiently demeaning to women may be actionable by both
men and women.
Defendants urge that, in the asserted absence of evidence that Kuykendall
flaunted his consensual sexual affairs, coerced or sought to derive advantage from
other employees in connection with them, or engaged in “open sexual conduct,
sexual discussions, or other indiscreet behavior in the workplace,” the facts of the
present case show nothing more than the kind of standard sexual favoritism claim
that has been rejected as a basis for liability under the FEHA and Title VII. We
disagree. Again, defendants have overlooked the circumstance that widespread
sexual favoritism may be actionable because of the effect it has on the work
environment.
30

Further, we question the factual premise of defendant’s argument. There
was evidence of considerable flaunting of the relationships affecting the
workplace, consisting of Bibb’s and Brown’s bragging and the jealous scenes
between these two women, along with Kuykendall’s indiscreet behavior at a
number of work-related social gatherings. The favoritism that ensued from the
sexual affairs also was on public display, reflected in Kuykendall’s permitting
Brown to abuse plaintiffs, his directive to the interview committee to promote
Bibb, and his repeated admissions that he would not or could not control Brown
because of his sexual relationship with her. It may even be inferred that
Kuykendall solicited sexual favors in return for employment benefits, in light of
Bibb’s and Brown’s boasts, the sequence of promotions awarded by Kuykendall,
and his comment to Miller, “I should have chose[n] you.”
To the extent defendants’ contention is that a reasonable person in
plaintiffs’ position would not have found the work environment to have been
hostile toward women on the basis of widespread sexual favoritism, we conclude
that the lower courts erred in precluding plaintiffs from presenting this issue to a
jury. The internal affairs investigation within the Department confirmed that
Kuykendall’s sexual favoritism occurred and was broadly known and resented in
the workplace, and that several employees — including Brown — concluded that
engaging in sexual affairs was the way required to secure advancement. There
was evidence from which a jury reasonably could conclude that the entire scheme
of promotion at VSPW was affected by Kuykendall’s favoritism..
Certainly, the presence of mere office gossip is insufficient to establish the
existence of widespread sexual favoritism, but the evidence of such favoritism in
the present case includes admissions by the participants concerning the nature of
the relationships, boasting by the favored women, eyewitness accounts of
incidents of public fondling, repeated promotion despite lack of qualifications, and
31

Kuykendall’s admission he could not control Brown because of his sexual
relationship with her ― a matter confirmed by the Department’s internal affairs
report. Indeed, it is ironic that, according to defendants, a jury should not be
permitted to consider evidence of widespread sexual favoritism that the
Department itself found convincing.
Finally, defendants warn that plaintiffs’ position, if adopted, would inject
the courts into relationships that are private and consensual and that occur within a
major locus of individual social life for both men and women — the workplace.
According to defendants, social policy favors rather than disfavors such
relationships, and the issue of personal privacy should give courts pause before
allowing claims such as those advanced by plaintiffs to proceed. Defendants urge
it is safer to treat sexual favoritism as merely a matter of personal preference, and
to recall that the FEHA is not intended to regulate sexual relationships in the
workplace, nor to establish a civility code governing that venue.
We do not believe that defendants’ concerns about regulating personal
relationships are well founded, because it is not the relationship, but its effect on
the workplace, that is relevant under the applicable legal standard. Thus, we have
not discussed those interactions between Kuykendall and his sexual partners that
were truly private. Moreover, the FEHA already clearly contemplates some
intrusion into personal relationships. Specifically the FEHA recognizes that
sexual harassment occurs when a sexual relationship between a supervisor and a
subordinate is based upon an asserted quid pro quo.
III
As noted, plaintiffs also alleged a cause of action for retaliation in violation
of the FEHA.
The FEHA protects employees against retaliation for filing a complaint or
participating in proceedings or hearings under the act, or for opposing conduct
32

made unlawful by the act. (Gov. Code, § 12940, subd. (h).) Specifically, section
12940, subdivision (h), declares that it is an unlawful employment practice for
“any employer . . . or person to discharge, expel, or otherwise discriminate against
any person because the person has opposed any practices forbidden under this part
or because the person has filed a complaint, testified, or assisted in any proceeding
under this part.”
This enactment aids enforcement of the FEHA and promotes
communication and informal dispute resolution in the workplace. (Flait v. North
American Watch Corp. (1992) 3 Cal.App.4th 467, 476-477.) 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.
(Id. at p. 476.)
Miller asserted she engaged in protected activity in complaining about
“improper relationships and sexual favoritism” and that “[w]hen Miller
complained to Warden Tina Farmon about Kuykendall’s affair with Bibb, when
she complained to Gerald Harris about the Warden’s [Kuykendall’s] affairs and
resulting harassment, when she complained to Brown about the affairs and
resulting harassment, when she told Kuykendall of Brown’s assault and battery on
her, when she participated in Internal Affairs investigation, and when she
subsequently wrote to Richard Ehle that [the Department] had failed to protect her
after she testified, she was opposing the hostile work environment at [the
Department] which resulted from the Warden’s sexual favoritism.” Miller added
that she engaged in protected activity in seeking accommodation for her physical
disability, and complained that the resulting accommodation was withdrawn after
she cooperated in the internal affairs investigation.
33

Miller asserted that she suffered retaliation in a number of additional ways.
She presented evidence that, in response to her complaints, supervisorial
employees Brown and Yamamoto undermined her authority in various respects,
publicly demeaned her, imposed additional onerous duties upon her, and subjected
her to ostracism. Brown, a management employee, physically assaulted Miller in
an effort to silence her, and threatened Miller with retribution as a result of
Miller’s cooperation with the internal affairs investigation. As previously noted,
there was evidence that Kuykendall withdrew accommodations previously
accorded Miller on account of her physical disability, and that he refused to curb
Brown’s abuse.
Plaintiff Mackey claimed she “engaged in protected activity under the
FEHA when she complained on numerous occasions about what she and other
women perceived to be a hostile work environment based on the sexual affairs of
the Warden and the unchecked harassment suffered as a result of those affairs. In
1997, she discussed with her superior, Edna Miller, the harassment by Brown
which went unchecked because of the Warden’s affair with Brown. Miller then
raised the issue with a sex harassment advisor Gerald Harris and with Warden
Kuykendall. Mackey complained to chief deputy warden Vicky Yamamoto and to
Warden Kuykendall about Brown’s assault on Miller which resulted from Miller’s
stating she would report the affairs and favoritism, and neither Yamamoto nor
Kuykendall took appropriate corrective action. In 1998, Mackey complained to
Internal Affairs about the sexual affairs, favoritism and the unchecked harassment
which resulted.”
Mackey claimed she suffered retaliation, providing evidence she was
deprived of eligibility for a promotion, lost special pay for inmate contact, suffered
ostracism, and was reassigned to tasks well below her capacity. She also alleged
34

that Brown verbally abused and threatened her as a result of Mackey’s cooperation
with the internal affairs investigation.
Neither the trial court nor the Court of Appeal reached the question whether
defendants had taken an adverse employment action against plaintiffs based on
their complaints of sexual harassment, or the question whether there was a causal
connection between the asserted protected activity and any adverse action, because
each court determined that plaintiffs had failed to make a prima facie showing that
they had engaged in protected activity by opposing sexual harassment that was
prohibited by the FEHA.
The Court of Appeal acknowledged that, under certain circumstances, a
retaliation claim may be brought by an employee who has complained of or
opposed conduct, even when a court or jury subsequently determines the conduct
actually was not prohibited by the FEHA. Indeed, this precept is well settled.
(Flait v. North American Watch Corporation, supra, 3 Cal.App.4th at p. 477 [the
plaintiff may prevail “even if the harassment was not sufficiently severe or
pervasive that it altered [the plaintiff’s] work environment”]; Moyo v. Gomez (9th
Cir. 1994) 40 F.3d 982, 985; Gifford v. Atchison, Topeka & Santa Fe Ry. Co. (9th
Cir. 1982) 685 F.2d 1149, 1157.) An employee is protected against retaliation if
the employee reasonably and in good faith believed that what he or she was
opposing constituted unlawful employer conduct such as sexual harassment or
sexual discrimination. (Flait v. North American Watch Corporation, supra, 3
Cal.App.4th at p. 477; see also E.E.O.C. v. Crown Zellerbach Corp. (9th. Cir.
1983) 720 F.2d 1008, 1013, fn. 2.)
The Court of Appeal concluded, however, that although plaintiffs had
opposed Kuykendall’s conduct, they had not engaged in protected activity,
35

because they had not expressed opposition to sex discrimination or sexual
harassment. As the court understood the record, “[p]laintiffs were not
complaining about sexual harassment but unfairness. This is not protected activity
under the FEHA.”
The appellate court faulted plaintiffs for not having complained to
defendants “that the affairs and related conduct created an atmosphere whereby
they felt they were being judged on their sexuality rather than on merit. Neither
woman claimed to have been propositioned by a supervisor, expressly or
impliedly, or to have been the subject of unwanted sexual attention. Neither
woman claimed that the atmosphere had become so sexually charged that they
could no longer do their work. Rather, plaintiffs’ complaints and reports
concerned the unfairness of promotions and other benefits given to paramours and
the resulting mistreatment of them by those paramours.” The Court of Appeal
added that plaintiffs had not complained that they “were being forced to work in
an atmosphere where they had to run a gauntlet of sexual abuse or where they
were judged on their sexuality rather than on the merits. This is not a situation
where plaintiffs honestly, but mistakenly, believed they were engaging in
protected activity by reporting sexual harassment. Plaintiffs did not even attempt
to report sexual harassment.”
We have concluded above, contrary to the determination of the Court of
Appeal, that the conduct plaintiffs complained of may constitute sexual
harassment in violation of the FEHA. We do not believe employees should be
required to elaborate to their employer on the legal theory underlying the
complaints they are making, in order to be protected by the FEHA. (See Moyo v.
Gomez, supra, 40 F.3d at p. 985 [in analyzing retaliation claims, courts should
recognize that plaintiffs have limited legal knowledge]; Gifford v. Atchison,
Topeka & Santa Fe Ry. Co., supra, 685 F.2d at p. 1157 [“It requires a certain
36

sophistication for an employee to recognize that an offensive employment practice
may represent sex or race discrimination that is against the law”]; see also
Drinkwater v. Union Carbide Corp., supra, 904 F.2d at p. 866 [although the
plaintiff’s hostile work environment claim based upon isolated sexual favoritism
did not survive summary judgment, her retaliation claim did — “[Union Carbide]
is not free to retaliate against plaintiff simply because she has failed to build her
sex discrimination claim properly,” and she was not required “to guess the
outcome of New Jersey law correctly”].) Furthermore, even if ultimately it is
concluded defendants’ conduct did not constitute a violation of the FEHA, we are
not persuaded by defendant’s claim that only an employee’s mistake of fact, and
not a mistake of law, may establish an employee’s good faith but mistaken belief
that he or she is opposing conduct prohibited by the FEHA. (See Moyo v. Gomez,
supra, 40 F.3d at p. 985 [the employee’s good faith “reasonable mistake may be
one of fact or law”]; Drinkwater v. Union Carbide Corp., supra, 904 F.2d at p.
866 [sanctioning a retaliation claim in light of the plaintiff’s reasonable belief
concerning the law].)
Particularly in view of the EEOC policy statement quoted at length above,
whether or not a jury or a court ultimately concludes defendants’ conduct
constituted sexual harassment, employees such as plaintiffs reasonably could
believe they are making a claim of sexual harassment in violation of the FEHA
when they complain of sexual favoritism in their workplace. Although plaintiffs
may not have recited the specific words “sexual discrimination” or “sexual
harassment,” the nature of their complaint certainly fell within the general purview
of the FEHA, especially when we recall that this case is before us on review of a
grant of summary judgment.
The FEHA’s stricture against retaliation serves the salutary purpose of
encouraging open communication between employees and employers so that
37

employers can take voluntary steps to remedy FEHA violations (Flait v. North
American Watch Corp., supra, 3 Cal.App.4th at p. 476), a result that will be
achieved only if employees feel free to make complaints without fear of
retaliation. The FEHA should be liberally construed to deter employers from
taking actions that would discourage employees from bringing complaints that
they believe to be well founded. The act would provide little comfort to
employees, and thereby would fail in its ameliorative purpose, if employees feared
they lawfully could lose their employment or suffer other adverse action should
they fail to phrase accurately the legal theory underlying their complaint
concerning behavior that may violate the act.
Similar concerns recently were expressed by the United States Supreme
Court in commenting upon the need to protect whistle blowers who complained
that a recipient of federal education funding intentionally discriminated on the
basis of sex. (Jackson v. Birmingham Bd. of Educ. (2005) ___ U.S. ___ [125 S.Ct.
1497].) The court concluded that Title IX of the Education Amendments of 1972
(20 U.S.C. § 1681, et seq. (Title IX)) provides the whistle blower with a private
right of action for retaliation. The high court, observing that Title IX would be
unenforceable if persons feared retaliation in the event they complained
concerning discriminatory practices, stated: “Congress enacted Title IX not only
to prevent the use of federal dollars to support discriminatory practices, but also
‘to provide individual citizens effective protection against those practices.’
[Citation.] We agree with the United States that this objective ‘would be difficult,
if not impossible, to achieve if persons who complain about sex discrimination did
not have effective protection against retaliation.’ [Citation.] If recipients [of
federal funds] were permitted to retaliate freely, individuals who witness
discrimination would be loathe to report it, and all manner of Title IX violations
might go unremedied as a result. [Citation.] [¶] Reporting incidents of
38

discrimination is integral to Title IX enforcement and would be discouraged if
retaliation against those who report went unpunished. Indeed, if retaliation were
not prohibited, Title IX’s enforcement scheme would unravel.” (Jackson v.
Birmingham Bd. of Educ., supra, ___ U.S. at p. ___ [125 S.Ct. at p. 1508].)
Defendants contend, and the Court of Appeal apparently concluded, that
plaintiffs did not demonstrate that at the time of their complaints they held a
subjective, good faith belief that they were complaining about sexual harassment.
They assume such a subjective mental state must be demonstrated even when a
plaintiff is not relying upon a good faith mistake. Whether or not this assumption
is accurate, we conclude that the subjective belief of the plaintiffs before us may
be inferred from the nature and content of their repeated complaints. The issue of
a plaintiff’s subjective, good faith belief involves questions of credibility and
ordinarily cannot be resolved on summary judgment. (See, e.g., Flait v. North
American Watch Corp., supra, 3 Cal.App.4th at p. 477.)
Because the Court of Appeal concluded plaintiffs failed to establish that
they were engaged in protected activity when they complained about potential
sexual harassment, that court did not reach the question whether plaintiffs
established a prima facie case on the remaining elements of their retaliation
claim — specifically, whether plaintiffs suffered an adverse employment action in
response to their sexual harassment complaints, and whether any adverse action
was caused by their protected activity.9 The court also did not reach defendants’
claim that plaintiffs failed to file their administrative complaint within the period
established by law. (See Gov. Code, § 12960, subd. (d) [plaintiffs must file their
9
The only aspect of the Court of Appeal’s discussion that pertained to the
issue of causation concerned Miller’s claim of retaliation on the basis of her
demand for disability accommodation.
39

complaints with the FEHC within one year of the alleged unlawful employment
practice].) We conclude it is appropriate to permit the Court of Appeal to address
these questions in the first instance on remand.
IV
For the foregoing reasons, the judgment of the Court of Appeal is reversed
to the extent it is inconsistent with our opinion, and the matter is remanded to the
Court of Appeal for further proceedings consistent with this opinion.
GEORGE, C.J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
40



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Miller v. Department of Corrections
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 105 Cal.App.4th 945
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S114097
Date Filed: July 18, 2005
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Joe S. Gray

__________________________________________________________________________________

Attorneys for Appellant:

Lawless & Lawless, Barbara A. Lawless, Aelish M. Baig and Sonya L. Smallets for Plaintiffs and
Appellants.

Law Offices of Philip Edward Kay and Lawrence A. Organ for The Civil Rights Forum as Amicus Curiae
on behalf of Plaintiffs and Appellants.

Law Offices of Jeffrey K. Winikow and Jeffrey K. Winikow for California Employment Lawyers
Association as Amicus Curiae on behalf of Plaintiffs and Appellants.

The Lucas Law Firm and Kathleen M. Lucas for Equal Rights Advocates’ as Amicus Curiae on behalf of
Plaintiffs and Appellants.

The Sturdevant Law Firm, James C. Sturdevant; Law Offices of Daniel U. Smith, Daniel U. Smith; Ian
Herzog; Michael Adler; Sharon J. Arkin; Stuart B. Esner; Brian S. Kabateck; David A. Rosen; Christine D.
Spagnoli; Lea-Ann Tratten, Steven B. Stevens; and Scott H. Z. Sumner for Consumer Attorneys of
California as Amicus Curiae on behalf of Plaintiffs and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Jacob Appelsmith, Assistant Attorney General, Vincent J. Scally, Jr.,
Timothy G. Yeung, Diana L. Cuomo and David J. Neill, Deputy Attorneys General, for Defendants and
Respondents.

Morgan, Lewis & Bockius, Rebecca D. Eisen, Thomas M. Peterson and Shannon B. Nakabayashi for The
Employers Group as Amicus Curiae on behalf of Defendants and Respondents.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Daniel U. Smith
Law Offices of Daniel U. Smith
Post Office Box 278
Kentfield, CA 94914
(415) 461-5630

David J. Neill
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 327-4853


Opinion Information
Date:Docket Number:
Mon, 07/18/2005S114097

Parties
1Odom, Sterling (Plaintiff and Appellant)
Represented by Barbara A. Lawless
Lawless & Lawless
180 Montgomery Street, Suite 2000
San Francisco, CA

2Odom, Sterling (Plaintiff and Appellant)
Represented by Aelish Marie Baig
Lawless & Lawless
180 Montgomery Street, Suite 2000
San Francisco, CA

3Miller, Edna (Plaintiff and Appellant)
Represented by Barbara A. Lawless
Lawless & Lawless
755 Sansome St #350
San Francisco, CA

4Miller, Edna (Plaintiff and Appellant)
Represented by Aelish Marie Baig
Attorney at Law
755 Sansome St #350
San Francisco, CA

5Department Of Corrections (Defendant and Respondent)
Represented by Diana L. Cuomo
Office of the Attorney General
P.O. Box 944255
Sacramento, CA

6Terhune, Cal (Defendant and Respondent)
Represented by Diana L. Cuomo
Office of the Attorney General
P.O. Box 944255
Sacramento, CA

7Terhune, Cal (Defendant and Respondent)
Represented by Attorney General - Sacramento Office
Timothy G. Yeung, Deputy Attorney General
P.O. Box 944255
Sacramento, CA

8Consumer Attorneys Of California (Amicus curiae)
Represented by Daniel U. Smith
Attorney at Law
P O Box 278
Kentfield, CA

9Civil Rights Forum (Amicus curiae)
Represented by Lawrence Anthony Organ
Law Ofc Philip E Kay
736 43rd Ave
San Francisco, CA

10California Employment Lawyers Association (Amicus curiae)
Represented by Jeffrey Keith Winikow
Attorney at Law
1801 Century Park E #1520
Los Angeles, CA

11Employers Group (Amicus curiae)
Represented by Rebecca D. Eisen
Morgan Lewis & Bockius LLP
1 Market, Spear Tower
San Francisco, CA

12Equal Rights Advocates (Amicus curiae)
Represented by Kathleen M. Lucas
Lucas Law Firm
180 Montgomery Street, Suite 2000
San Francisco, CA


Disposition
Jul 18 2005Opinion: Reversed

Dockets
Mar 7 2003Petition for review filed
  by counsel for plaintiffs and appellants (Frances K. Mackey and Edna Miller)
Mar 7 2003Record requested
 
Mar 10 2003Received Court of Appeal record
  one doghouse
Mar 27 2003Answer to petition for review filed
  by counsel (AG) for respondents (Dept. of Corrections et al.).
Mar 28 2003Received letter from:
  Lawless & Lawless dated 3/28/2003
Apr 7 2003Received:
  Errata notice from counself or appellant. Clerical error in the citation of Proksel v. Gattis on pages 4, 5, 7, 11 and 12 of the petition for review.
Apr 9 2003Received Court of Appeal record
  three doghouses
Apr 23 2003Petition for Review Granted (civil case)
  Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Apr 28 2003Filed:
  Notice of change of assigned Deputy Attorney General from AG's Office. DAG - Diana L. Cuomo has been assigned to represent respondent Dept. of Corrections, in place of Timothy G. Yeung.
May 1 2003Request for extension of time filed
  by counsel for appellants requesting to June 23, 2003 to file opening brief on the merits. (granted - order being prepared)
May 6 2003Extension of time granted
  Appellant's time to serve and file the opening brief on the merits is extended to and including June 23, 2003.
May 8 2003Certification of interested entities or persons filed
  by counsel for appellants (Frances K. Mackey & Edna Miller).
Jun 19 2003Opening brief on the merits filed
  by counsel for appellants (Frances K. Mackey & Edna Miller).
Jun 27 2003Request for extension of time filed
  respondent requesting to Sept. 22, 2003 to file the answer brief on the merits.
Jul 8 2003Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 22, 2003.
Sep 22 2003Answer brief on the merits filed
  by counsel for respondent (Dept.of Corrections,et al.)
Oct 10 2003Reply brief filed (case fully briefed)
  by counsel for aplts. (F. Mackey and E. Miller)
Nov 7 2003Received application to file Amicus Curiae Brief
  by The Civil Rights Forum in support of appellants. (appli & brief under same cover)
Nov 7 2003Request for extension of time filed
  The Consumer Attorneys of California request an extension to Nov. 26, 2003 to file its application and amicus curiae brief.
Nov 7 2003Received application to file amicus curiae brief; with brief
  California Employment Lawyers Association app/brf under same cover. supports appellant Francis K. Mackey and Edna Miller.
Nov 10 2003Received letter from:
  attorney Herbert W. Yanowitz.
Nov 10 2003Received application to file Amicus Curiae Brief
  by The Employers Group in support of respondents. (appli & brief separate)
Nov 10 2003Received application to file amicus curiae brief; with brief
  by Equal Rights Advocates in support of appellants.
Nov 13 2003Extension of time granted
  On application of amicus curiae The Consumer Attorneys of California and good cause appearing, it is ordered that the time to serve and file its amicus curiae brief in support of appellants herein is extended to and including Novemeber 26, 2003. An answer may be filed by any party within 20 days of the filing of the brief.
Nov 17 2003Request for extension of time filed
  Respondents requesting to Jan. 12, 2004 to file answer briefs to the various amici curiae briefs in support of appellants. (recv'd in Sacto) (granted - order being prepared)
Nov 19 2003Permission to file amicus curiae brief granted
  Equal Rights Advocates
Nov 19 2003Amicus curiae brief filed
  The application of Equal Rights Advocates for permission to file an amicus curiae brief in support of appellants is hereby granted. Answer due by any party within 20 days.
Nov 19 2003Permission to file amicus curiae brief granted
  The Civil Rights Forum
Nov 19 2003Amicus curiae brief filed
  The application of The Civil Rights Forum for permission to file an amicus curiae brief in support of appellants is hereby granted. Answer due by any party within 20 days.
Nov 19 2003Permission to file amicus curiae brief granted
  The Employers Group
Nov 19 2003Amicus curiae brief filed
  The application of The Employers Group for permission to file an amicus curiae brief in support of respondents is hereby granted. Answer due by any party within 20 days.
Nov 19 2003Permission to file amicus curiae brief granted
  California Employment Lawyers Association
Nov 19 2003Amicus curiae brief filed
  The application of California Employment Lawyers Association for permission to file an amicus curiae brief in support of appellants is hereby granted. Answer due by any party within 20 days.
Nov 21 2003Extension of time granted
  On application of respondents and good cause appearing, it is ordered that the time to serve and file the respondent's answer briefs to the various amici curiae briefs in support of appellants is extended to and including January 12, 2004.
Dec 1 2003Received application to file Amicus Curiae Brief
  by The Consumer Attorneys of California in support of appellants. (40k)
Dec 11 2003Permission to file amicus curiae brief granted
  Consumer Attorneys of California
Dec 11 2003Amicus curiae brief filed
  by Consumer Attorneys of California in support of appellants. Answer due within 20 days.
Jan 9 2004Response to amicus curiae brief filed
  in Sacramento by AG for respondents (Dept. of Corrections et al.). Response to amicus curiae brief of California Employment Lawyers Assoc.
Apr 13 2004Received:
  from counsel for resp. Dept. of Corrections. letter re: counsel's unavailability for oral arg. (7-13-04 to 8-13-04)
Apr 1 2005Case ordered on calendar
  5/3/05 @9am, S.F.
Apr 1 2005Note:
  New address for counsel for appellant per phone conversation with Debbie Catzowitz @ Lawless & Lawless: 180 Montgomery Street, Suite 2000, San Francisco, CA 94104. Ms. Catzowitz will mail in a Change of Address notification.
Apr 7 2005Received:
  via fax - letter from counsel for respondent (CA Dept. of Corrections) dated 4/6/05 requesting oral argument be continued to the June calendar.
Apr 8 2005Change of contact information filed for:
  counsel for aplt. ( Frances K. Mackey and Edna Miller)
Apr 8 2005Note:
  Letter sent to A.G. denying request for continuance of oral arg.
May 2 2005Filed:
  Appellant's request for substitiution of deceased Appellant.
May 3 2005Cause argued and submitted
 
May 4 2005Order filed
  The motion filed on May 2, 2005, to substitute Sterling Odom for decedent Frances K. Mackey as a party in the above-entitled action is granted. Sterling Odom is substituted in his capacity as personal representative of the estate. (Code Civ. Proc., ? 377.31; Prob. Code, ? 58.)
Jun 13 2005Order filed
  In light of the death of Frances K. Mackey, the above entitled matter is retitled as follows: Edna Miller et al., Plaintiffs and Appellants, v. Department of Corrections et al., Defendants and Respondents.
Jul 18 2005Opinion filed: Judgment reversed
  to the extent it is inconsistent with our opinion, and the matter is remanded to the Court of Appeal for further proceedings consistent with this opinion. Majority Opinion by George, CJ. ----- Joined by Kennard, Baxter, Werdegar, Chin and Moreno, JJ.
Aug 22 2005Remittitur issued (civil case)
 
Aug 22 2005Returned record
  to 3DCA. (Three doghouses)
Aug 25 2005Received:
  receipt for remittitur

Briefs
Jun 19 2003Opening brief on the merits filed
 
Sep 22 2003Answer brief on the merits filed
 
Oct 10 2003Reply brief filed (case fully briefed)
 
Nov 19 2003Amicus curiae brief filed
 
Nov 19 2003Amicus curiae brief filed
 
Nov 19 2003Amicus curiae brief filed
 
Nov 19 2003Amicus curiae brief filed
 
Dec 11 2003Amicus curiae brief filed
 
Jan 9 2004Response to amicus curiae brief filed
 
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