Miller v. Department of Corrections

• Decision Date: 18 July 2005
• Docket Number: No. S114097.,S114097.
• Citation: 30 Cal.Rptr.3d 797,36 Cal.4th 446,115 P.3d 77
• Court: California Supreme Court
• Parties: Edna MILLER et al., Plaintiffs and Appellants, v. DEPARTMENT OF CORRECTIONS et al., Defendants and Respondents.

30 Cal.Rptr.3d 797

36 Cal.4th 446

115 P.3d 77

Edna MILLER et al., Plaintiffs and Appellants, v. DEPARTMENT OF CORRECTIONS et al., Defendants and Respondents.

No. S114097.

Supreme Court of California.

July 18, 2005.

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

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

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

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

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

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, San Francisco, for The Employers Group as Amicus Curiae on behalf of Defendants and Respondents.

GEORGE, C.J.

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 to engage 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 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.

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 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.)

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...