Jones v. R.J. Donovan Correctional Facility

• Decision Date: 14 June 2007
• Docket Number: No. D048281.,D048281.
• Citation: 152 Cal.App.4th 1367,62 Cal.Rptr.3d 200
• Court: California Court of Appeals Court of Appeals
• Parties: Kim C. JONES, Plaintiff and Appellant, v. R.J. DONOVAN CORRECTIONAL FACILITY et al., Defendants and Respondents.

62 Cal.Rptr.3d 200

152 Cal.App.4th 1367

Kim C. JONES, Plaintiff and Appellant, v. R.J. DONOVAN CORRECTIONAL FACILITY et al., Defendants and Respondents.

No. D048281.

Court of Appeal, Fourth District, Division 1.

June 14, 2007.

Leah Marie Peer, Donald R. Holben & Associates, San Diego, CA, for Plaintiff and Appellant.

Office of the Attorney General, San Diego, CA, for Defendants and Respondents.

O'ROURKE, J.

Kim C. Jones appeals a summary judgment granted to her employer, the California Department of Correction and Rehabilitation (CDCR), and individual supervisors, Sergeants James Bolin and Gary Kuske, crew officer Michael McMinn, and Robert Hernandez, the warden at the R.J. Donovan Correctional Facility (collectively Respondents).¹ Jones contends the trial court erred in finding she did not present evidence of triable issues of material fact showing: (1) the Respondents' conduct constituted adverse employment actions; (2) a nexus existed between her gender and race and the adverse actions; (3) she was subjected to a severe and pervasive hostile work environment based upon her gender; Jones also contends (4) as a matter of law, her causes of action for assault and battery, emotional distress, and negligent supervision were not barred by the exclusive remedies of the workers' compensation statutes.

We conclude Respondents met their burden on summary judgment and Jones failed to establish the existence of triable issues of material fact which could lead a reasonable trier of fact to find that she experienced harassment, discrimination and retaliation within the meaning of California's Fair Employment and Housing Act (FEHA) (Gov.Code², § 12900 et seq.) We conclude the causes of action for assault and battery and emotional distress are barred by the workers' compensation exclusivity rule. The negligent supervision cause of action also fails because it was based on Jones's claims of discrimination and assault and battery. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We set forth the undisputed facts from the parties' documents supporting their moving and opposing papers (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 327, 100 Cal.Rptr.2d 352, 8 P.3d 1089) (Guz) and state other facts and draw inferences from them in the light most favorable to Jones as the opposing party. (Code Civ. Pro., § 437c, subd. (c); Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1520, 80 Cal.Rptr.2d 94; Van Dyke v. S.K.I. Ltd. (1998) 67 Cal. App.4th 1310, 1313, fh. 2, 79 Cal.Rptr.2d 775.) We do so notwithstanding Jones's failure to set out a complete and adequate factual recitation in her opening brief, as discussed below.

Jones, an African-American female, has worked as a correctional officer at Donovan since 1987. She became a rock crew officer in December 2002, and supervised inmates on a work crew.³ Her lawsuit alleged the following causes of action arising under FEHA: (1) gender discrimination—hostile work environment; (2) sexual harassment—hostile work environment; (3) race discrimination; and (4) unlawful retaliation. She also alleged: (5) assault and battery; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; and (8) negligent supervision and retention of employees.

The complaint alleged, "beginning in December 2002 until December 4, 2003, Jones was treated with open hostility, disrespect and cruelty by the male correctional officers." Jones reported these incidents to her supervisors. From January 2003 until October 2003, Jones's supervisor was Sergeant Doris Turner, an African-American.

In April 2003, Jones was not permitted to change her work schedule, although two male correctional officers, Newton and McMinn, were allowed to change theirs. After Jones inquired about this disparate treatment, Sgt. Turner notified McMinn that the practice of making such schedule changes was cancelled. As a result, McMinn and other male correctional officers "escalated their abusive and hostile behavior towards [her]."

On May 2, 2003, Captain Talbert met with Jones and gave her a "Job Expectations" memorandum that primarily summarized California Code of Regulations sections dealing with "Employee Conduct" and the "Rights and Respect of Others." Shortly afterwards, Captain Talbert met with McMinn and issued him a similar memorandum.

From approximately October 2003 through December 4, 2003, Sergeant Gary Kuske directly supervised Jones. On or about November 20, 2003, Sergeant Kuske forbade Jones and all other crew officers from doing paperwork in his office. Jones claims Kuske "directed her to the Connex outside the facility where the tools were kept."

On December 4, 2003, Jones and McMinn had an altercation regarding the use of a wheelbarrow. Jones testified in her deposition that the inmates she was supervising needed the wheelbarrow, but McMinn took it. Jones was displeased and went to retake it; however, McMinn blocked her and refused to move out of her way. He grabbed her arm and started "banging her body around and stuff." Just then, another correctional officer called out to McMinn that the sergeant wanted to see him. McMinn walked away, and Jones took the wheelbarrow. That day Jones reported pain in her neck and right wrist and shoulder, for which she received medical care at Donovan. Carol Capper, the treating medical technical assistant, stated in a declaration, "My examination indicated Officer Jones' right wrist had a full range of motion. Her skin was intact meaning she had no wounds or cuts and there was no redness." Jones was placed on medical disability leave on December 4, 2003, and has not returned to work. She has collected workers' compensation benefits.

In January and September, 2004, Jones filed complaints with the Department of Fair Employment and Housing (DFEH) against Donovan and several employees. In February and September, 2004, the DFEH issued right-to-sue notices, and she filed the underlying complaint on October 29, 2004.

On September 30, 2005, CDCR filed a motion for summary judgment or, in the alternative, summary adjudication on behalf of itself and all defendants, arguing that the FEHA causes of action failed—as a matter of law—because Jones could not state a prima facie case, given that none of the claimed wrongful conduct constituted an adverse action; but even if they were so deemed, they were made for legitimate, nondiscriminatory reasons. Respondents also contended the exclusive remedy provided in the workers' compensation statutes barred the causes of action for assault and battery, intentional and negligent infliction of emotional distress, and negligent supervision and retention of employees.

Jones opposed the motion and listed a "series of adverse employment actions against [her]." Specifically, her male coworkers inflicted hardship on her in the following nine ways: criticized her without reason; treated her in a hostile manner on a daily basis; did not respond to her calls for assistance; made false accusations about her to inmates, including misleading the inmates into believing she was responsible for a failure to timely pay the inmates; intentionally mislead her into believing she and her inmates were responsible for working expanded areas; treated her inmates disparately and more harshly than their own crews. She was given an expectations memo on the same day she inquired why McMinn and Newton were allowed to change their work schedules; McMinn responded by accusing her of creating a hostile work environment. Sergeant Kuske ordered her out of his office, and directed her to work in the Connex, which was infested with rodents/rats, because the male officers did not welcome her presence in the more desirable areas. Finally, CDCR investigated her for misconduct following the wheelbarrow incident.

Respondents pointed out in their reply papers that Jones's opposition presented no evidence that her race or gender was the basis for her claims of adverse action, discrimination, sexual harassment and retaliation. Moreover, Jones did not present any evidence to refute Respondents' claims their complained-of employment actions were made for legitimate, nondiscriminatory reasons. In particular, Jones and McMinn each received a memorandum of expectations in accordance with CDCR policy to improve employee conduct and working relationships; Kuske banned all crew officers from his office because he did not want them spending time away from their supervisory duties; and, Jones was assigned to work in the Connex because she was to inventory tools there. Jones did not dispute that the rats and rodents are native to the desert area around Donovan, and make their home under the Connex.

The trial court granted summary judgment in favor of all defendants.

DISCUSSION

Summary Judgment

"The grant and denial of summary judgment or summary adjudication motions are subject to de novo review." (Nakamura v. Superior Court (2002) 83 Cal.App.4th 825, 832, 100 Cal.Rptr.2d 97.) "[I]n moving for summary judgment, a `defendant ... has met' his `burden of showing that a cause of action has no merit if the defendant `has shown 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. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff ... may not rely upon the mere allegations or denials' of his `pleadings to show that a triable issue of material fact exists but, instead,' must `set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.'" (Aguilar v. Richfield Co. (2001) 25 Cal.4th 826, 849, 107 Cal. Rptr.2d 841, 24 P.3d 493; Code Civ. Proc, § 437c, subd. (o)(2).) We must presume the judgment is correct, and the appellant bears the burden...