Mackey v. Department of Corrections

• Decision Date: 28 January 2003
• Docket Number: No. C040262.,C040262.
• Citation: 130 Cal.Rptr.2d 57,105 Cal.App.4th 945
• Parties: Frances K. MACKEY et al., Plaintiffs and Appellants, v. DEPARTMENT OF CORRECTIONS et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

130 Cal.Rptr.2d 57

105 Cal.App.4th 945

Frances K. MACKEY et al., Plaintiffs and Appellants, v. DEPARTMENT OF CORRECTIONS et al., Defendants and Respondents.

No. C040262.

Court of Appeal, Third District.

January 28, 2003.

Certified for Partial Publication.^* As Corrected Jan. 31, 2003.

Review Granted April 23, 2003.

Lawless & Lawless, Barbara A. Lawless, San Francisco, and Aelish M. Joyce, for Plaintiffs and Appellants.

Bill Lockyer, Attorney General, Jacob Appelsmith, Senior Assistant Attorney General, Vincent J. Scally, Jr., and Timothy G. Yeung, Deputies Attorney General, for Defendants and Respondents.

HULL, J.

Plaintiffs appeal from judgments entered for defendants California Department of Corrections (CDC) and Cal Terhune, the Director of CDC, following entry of summary adjudications for defendants. Plaintiffs contend issues of fact remain on their sex discrimination, retaliation and related causes of action. We disagree and affirm.

Facts and Procedural History

Plaintiff Edna Miller began working for CDC in 1979 as a correctional officer, and by 1995 had attained the rank of correctional counselor III (CC III). In 1995, Miller was transferred to Valley State Prison for Women (VSPW). At the same time, Miller's close friend, Cagie Brown, a correctional counselor II (CC II), was also transferred to VSPW. At all times relevant to this matter, the warden at VSPW was Lewis Kuykendall. His chief deputy warden was Vicki Yamamoto.

In or about 1994, Miller received information that led her to believe Kuykendall was having affairs with his secretary, Kathy Bibb, and an associate warden, Debbie Patrick. In or about 1995, Miller heard from another correctional officer, Francis Gantong, that Kuykendall was having an affair with Cagie Brown. Miller confronted Brown about the matter and later observed Brown intimidating, ridiculing and demeaning Gantong. Brown eventually informed Miller of her relationship with Kuykendall and boasted of her power with Kuykendall. Miller overheard Brown say she was going to use her relationship with Kuykendall to get things she wanted at work. Miller observed that, when Brown asked Kuykendall for privileges, her request was granted.

In or about 1995, Miller and Brown interviewed for a temporary position of facility captain. Prior to the interviews, Brown told Miller that Kuykendall had better give Brown the position, or she would "take him down," because she knew "every scar on his body." Despite Miller's rank of CC III and Brown's lower rank of CC II, and despite Miller's greater education, experience and certifications, Brown was given the promotion. In February 1996, Miller and Brown applied for a permanent facility captain position. Brown again received the promotion.

Between 1995 and 1997, Brown and Yamamoto developed a "close and powerful relationship." In 1997, Brown was promoted to associate warden, and became Miller's immediate supervisor. Brown and Yamamoto often had lunch and dinner together. Yamamoto "routinely" asked Miller to lunch and dinner, sometimes alone and sometimes with Brown, but Miller declined. Later, Brown and Yamamoto routinely countermanded Miller's orders to her staff and undermined Miller's authority. When Miller complained to Kuykendall, Yamamoto told Miller she was angry and "not to ever go to the Warden about her again."

On one occasion, Yamamoto directed Miller to lower a performance rating on one of Miller's subordinates, who was an excellent worker, and Miller objected. On another occasion, Miller ordered a subordinate employee to attend an audit at another facility. However, this order was countermanded by Brown and Yamamoto, who insisted that Miller attend herself. Because Miller was a single parent, this required her to drive to the audit three hours each way for four days.

When Miller returned from the audit, she discovered that Yamamoto had reassigned an area under Miller's supervision, the reception area, to another employee. This was humiliating to Miller, because normally such measures are taken for poor performance. A coworker told Miller that, in an office meeting, Yamamoto said she did not think Miller was doing her job. Another employee told Miller people around the institution were saying Miller was not doing her job. By this time the situation at work had gotten so bad that Miller was reduced to tears on a regular basis.

Plaintiff Frances Mackey began working for CDC in 1975 as an assistant clerk, and was promoted to correctional case records manager in 1985. She was transferred to VSPW in September 1996, as the records manager for the reception center.

Through observations in and out of work and conversations with coworkers, including Edna Miller, Mackey surmised that Kuykendall was "involved with" Brown, Patrick, Bibb, and Yamamoto. Bibb liked to brag about having a direct line to the warden and received a promotion for which she did not meet the minimum qualifications. Mackey believed that Brown was moving up through the ranks too quickly, given her education and experience. Mackey concluded that Brown was sexually involved with Yamamoto.

At the time Mackey was transferred to VSPW, she was promised she would receive inmate pay, which is given to employees who have contact with inmates, amounting to $360 per month. Mackey received inmate pay until July 1997. In the spring of 1997, Mackey was assigned to the mainline records office, where there was no inmate contact. However, Brown told her the move was only temporary and promised Mackey she would continue to receive inmate pay. Later, Brown told Mackey she would not be returning to the reception area and was not entitled to inmate pay.

During the summer and fall of 1997, Brown mistreated Mackey by yelling and cursing at her and by calling her "useless" in front of other employees. Mackey's subordinates thereafter began questioning Mackey's instructions. The environment around the office became increasingly hostile because of Kuykendall's inability to control Brown.

In September 1997, Miller confronted Brown on the telephone about her relationship with Kuykendall and about Miller being harassed by Brown and Yamamoto. Brown acknowledged that Yamamoto was harassing Miller for no reason and was using a "power play" against her. Brown further indicated Kuykendall knew that Yamamoto "had it in for" Miller and would not do anything about it. Brown said she had control over Yamamoto but that Miller should "either deal with it or just forget it." Miller allowed Mackey, Zona Allen and Danette Paddford to listen in on this conversation.

The next day, Brown called Miller and accused her of taping the previous conversation. Brown said she was coming into the office to speak with Miller. Miller asked Mackey to come to her office for support. However, when Brown arrived, she ordered Mackey out. Miller tried to leave, telling Brown she "was going to report everyone, including [Brown's] affair with Kuykendall...." Brown grabbed Miller's arm and shook her back and forth. Miller was screaming and crying and tried to pull herself away. She moved into her secretary's office, where Brown pinned her against a filing cabinet. Brown kept Miller from leaving for two hours. Miller later told Mackey what had happened.

The next day, Mackey reported the incident to Kuykendall, who said he would take care of it. However, Mackey did not see him do anything thereafter. Kuykendall called Miller at home and asked what happened. The next Monday, Miller went to Kuykendall's office and reported the incident. She confronted him about his relationship with Brown, and he asked if she had proof. Miller indicated she felt forced to go outside the institution to get help. Kuykendall responded: "No one will believe you, it will just be an ugly scandal, and it would be your word against Cagie's word."

Kuykendall told Miller to take off a week and that, when she returned, she would not have to report to Brown or Yamamoto. Miller returned to her office, where Brown questioned her about her discussion with Kuykendall. Brown authorized Miller to take off two weeks. During the two weeks, Kuykendall called Miller and told her to return and interview for a captain position. She did so, and a week later she was informed that she had gotten the promotion.

Sometime in 1998, Miller informed Kuykendall she was going to file a harassment claim, because he would not stop the harassment by Brown and Yamamoto. Kuykendall indicated that "because of his relationship with [Brown] and the fact that [Brown] had a rope around his neck because of her relationship with Yamamoto, that he did not trust her any longer." Kuykendall indicated Brown was playing him against Yamamoto. Kuykendall also expressed that he "should have chose[n] [Miller] instead of [Brown]...."

In 1998, an investigation was initiated by CDC's Office of Internal Affairs (OIA) regarding the conduct of Kuykendall, Brown and Yamamoto. Miller was interviewed by Kevin Cooper. However, Miller indicated that she could not tell Cooper anything, because OIA could not protect her from Kuykendall and the people who were covering for him. A week later, Miller was again interviewed by Cooper, who informed her if she did not answer his questions she would be disciplined. Cooper said he would not tell anyone that she had given information. Miller then reported what she knew about the warden's relationships with Brown, Bibb, and Patrick and what effects those relationships had on her. She also reported the telephone conversation that had been overheard by Mackey, Allen and Paddford.

Later, Brown contacted Miller and was furious that Miller had informed OIA about Brown's relationship with Kuykendall. Brown also recited the names of the people who had overheard the telephone conversation between Miller and Brown. Miller began hearing rumors that she had made up things to get Kuykendall and Yamamoto fired and was labeled as the person responsible for the OIA investigation.

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