Bailey v. S.F. Dist. Att'y Off.

552 P.3d 433

323 Cal.Rptr.3d 369

Twanda BAILEY, Plaintiff and Appellant,

v.SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE et al., Defendants and Respondents.

S265223

Supreme Court of California.

July 29, 2024

First Appellate District, Division One, A153520, San Francisco City and County Superior Court, CGC 15-549675, Harold E. Kahn, Judge

Law Offices of Daniel Ray Bacon, Daniel Ray Bacon, San Francisco; and Robert L. Rusky for Plaintiff and Appellant.

Stacy Villalobos and Christopher Ho, San Francisco, for Legal Aid at Work, ACLU Foundation of Northern California, Bet Tzedek Legal Services, Center for Workers’ Rights, Earthlodge Center for Transformation, Equal Justice Society, Impact Fund, Maintenance Cooperation Trust Fund, Na- tional Employment Law Project and Worksafe as Amid Curiae on behalf of Plaintiff and Appellant.

Dennis J. Herrera and David Chiu, City Attorneys, Katharine Hobin Porter and Jonathan Rolnick, Chief Deputy City Attorneys, Boris Reznikov, Neha Gupta and Tara M. Steeley, Deputy City Attorneys, for Defendants and Respondents.

Renne Public Law Group, Arthur A. Hartinger, Ryan P. McGlnley-Stempel and Anastasia Bondarchuk for California State Association of Counties and League of California Cities as Amici Curiae on behalf of Defendants and Respondents.

Horvitz & Levy, Bradley S'. Pauley and Eric S. Boorstin, Burbank, for the Association of Southern California Defense Counsel as Amicus Curiae on behalf of Defendants and Respondents.

Opinion of the Court by Evans, J.

Plaintiff Twanda Bailey sued the San Francisco District Attorney’s Office, former District Attorney George Gascon, and the City and County of San Francisco (collectively, the City) for violations of the California Fair Employment and Housing Act (FEHA), Government Code section 12900 et seq.¹ Under FEHA, it is an unlawful employment practice for an employer to harass an employee because of their race. (§ 12940, subd. (j)(1).) It is also an unlawful employment practice for an employer to retaliate against an employee for engaging in protected activity, such as making a complaint of racial harassment in the workplace. (§ 12940, subd. (h).)

Bailey, who is African-American, alleges that a coworker with whom she shared an office and job duties called her the N-word. Bailey further alleges that, after she reported this incident, the human resources manager for the District Attorney’s Office obstructed the filing of a formal complaint, engaged in a course of intimidating conduct, and ultimately threatened Bailey that she was "going to get it." Bailey’s action against the City alleges she was subjected to racial harassment by her coworker and retaliation by the human resources manager after complaining of the harassment. The trial court granted summary judgment for the City, finding Bailey had failed to make a prima facie showing on her FEHA claims. The Court of Appeal affirmed, and we granted review.

This case asks us to assess whether certain conduct may be actionable under FEHA. First, we assess whether a coworker’s onetime use of a racial slur may be actionable in a claim of harassment, that is, whether such an incident may be so severe as to alter the conditions of employment and create a hostile work environment. For the reasons discussed below, we conclude that an isolated act of harassment may be actionable if it is sufficiently severe in light of the totality of the circumstances, and that a coworker’s use of an unambiguous racial epithet, such as the N-word, may be found to suffice. Second, we assess whether a course of conduct that effectively seeks to withdraw an employee’s means of reporting and addressing racial harassment in the workplace is actionable in a claim of retaliation, that is, whether such conduct may constitute an adverse employment action. We conclude that it may. Applying these standards, the record presents triable issues of fact on Bailey’s harassment and retaliation claims. We therefore reverse the judgment of the Court of Appeal.

I. BACKGROUND

[1–3] Because this is an appeal from an order granting a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037, 32 Cal.Rptr.3d 436, 116 P.3d 1123 (Yanowitz).) A trial court properly grants a motion for summary judgment only if no triable issue exists as to any material fact and the defendant is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 415, 173 Cal.Rptr.3d 689, 327 P.3d 797.) "The moving party bears the burden of showing the court that the plaintiff ‘has not established, and cannot reasonably expect to establish; a pri- ma facie case ….’ " (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460, 30 Cal.Rptr.3d 797, 115 P.3d 77 (Miller), citing Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143.) On appeal, we examine the record de novo, viewing the evidence in the light most favorable to the plaintiff as the losing party and resolving any evidentiary doubts or ambiguities in her favor. (Elk Hills Power, LLC v. Board of Equalization (2013) 57 Cal.4th 593, 606, 160 Cal.Rptr.3d 387, 304 P.3d 1052 (Elk Hills); Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142, 12 Cal.Rptr.3d 615, 88 P.3d 517 (Wiener).)

Bailey began working at the District Attorney’s Office in 2001 as a clerk in the records department. The office promoted her in 2011 to an investigative assistant position. Bailey worked alongside Saras Larkin, another investigative assistant. The two sat next to each other in the records room. Bailey is African-American. Larkin is Fijian/East Indian, On January 22, 2015, while in the records room, Larkin told Bailey that she saw a mouse run under Bailey’s desk.² Bailey was startled and jumped out of her chair. Larkin walked up to Bailey and quietly said, "You [N-words] is so scary."³

Immediately following this Incident, Bailey left her office and told three coworkers what Larkin had said. Bailey was crying and upset. Although Bailey was offended by Larkin’s use of the racial slur, she did not immediately complain to human resources (HR) because she feared harassment and retaliation. This fear was based on Bailey’s understanding that other employees had been harassed and discriminated against following incidents with Larkin. Specifically, Bailey understood that Larkin was best friends with the office’s department personnel officer, Evette Taylor-Monachino, and that Larkin’s actions against other African-American women, Davonne Mark and Sydney Fisher, caused them to be reassigned or to separate from the District Attorney’s Office. In a declaration, Mark attested to the close friendship between Taylor-Monachino and Larkin. Mark had worked in the records room with Bailey and Larkin but stated that she was reassigned after Larkin made false accusations against her.

On January 23, at an offsite office party, Bailey’s supervisor, Alexandra Lopes, overheard a conversation about the incident between Bailey and Larkin. Lopes told Bailey that she planned to notify HR. Bailey felt more comfortable with Lopes reporting it, rather than doing so herself. On January 28, Lopes reported the incident to Sheila Arcelona, the assistant chief of finance and administration. Arcelona conferred with Taylor-Monachino and Eugene Clendinen, the chief administrative and financial officer, who reported directly to the district attorney. They agreed Arcelona should meet with Bailey and Larldn separately, and that Taylor-Monachino, as the department personnel officer, should attend the meetings.

Arcelona and Taylor-Monachino met with Bailey on January 29. Bailey reiterated that Larkin had used an offensive racial slur and confirmed that this was the only time she had heard Larkin use such language. Arcelona informed Bailey that "management would address the issue" and that Bailey should report any inappropriate behavior directly to management. Arcelona and Taylor-Monachino then met with Larkin, who "did not admit to making the alleged remark." Arcelona counseled Larkin on the city’s "Harassment-Free Workplace Policy" and informed her that use of the alleged language was "unacceptable." Larkin asked if Bailey filed a complaint and was told that no complaint had been filed. No further action was taken against Larkin at that time.

Arcelona documented the meetings with Bailey and Larkin and provided a written summary to Clendinen and Taylor-Monachino. Although Taylor-Monachino was the HR representative charged with reporting incidents of workplace harassment to the city’s Department of Human Resources (DHR), she did not file a formal complaint as city policy required. Bailey and Larkin shared an office and were familiar with each other’s job duties. Although there is some dispute as to the period between 2013 and 2015, it is undisputed, that, prior to 2013 and following the incident on January 22, Bailey and Larkin were required to cover for each other during absences. After the meetings with Bailey and Larkin, Arcelona raised the possibility of separating them, but Taylor-Monachino objected, stating "there was no way to do that without creating the appearance that one or the other had done something wrong. And since the allegation had never been proven, [Arcelona] should not take action to separate them." According to Arcelona, Clendinen deferred to Taylor-Monachino.

On March 23, Bailey asked Taylor-Monachino for a copy of the complaint regarding the January 22 incident. Taylor-Monachino informed Bailey that no complaint existed. When Bailey requested that a complaint be filed, Taylor-Monachino refused. Taylor-Monachino stated that Bailey should not have told her coworkers about the incident with Larkin, adding that, by doing so, Bailey could cause a hostile work environment for Larkin and Larkin’s work could be "messed...