Kuigoua v. Dep't of Veteran Aff.

320 Cal.Rptr.3d 330

Arno Patrick KUIGOUA, Plaintiff and Appellant,

v.DEPARTMENT OF VETERAN AFFAIRS, Defendant and Respondent.

B323735

Court of Appeal, Second District, Division 8.

Filed April 17, 2024

APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen T. Morgan, Judge. Affirmed. Los Angeles County, Super. Ct. No. 20STCV00073

The Guha Law Firm and Ranojoy Guha for Plaintiff and Appellant.

Tiffany L. King, Deputy Secretary and Chief Counsel, Andia Farzaneh, Staff Counsel, and Samantha Lewis-Garden, Senior Staff Counsel for Defendant and Respondent.

WILEY, J.

Arno Kuigoua complained about employment oppression to an anti-discrimination agency and to a court. The trouble was he told two divergent stories: one to the agency, but a different one in court. By withholding from the agency the facts he would later allege in his judicial complaint, Kuigoua scotched the agency’s ability to learn about, and to conciliate, the dispute Kuigoua sought to litigate in the judicial forum. The court rightly granted summary judgment against Kuigoua for failing to exhaust his administrative remedies. Un specified citations are to the Government Code.

I

In May 2015, Kuigoua started working for the California Department of Veterans Affairs, which we call the Veterans Department, or simply the Department.

A

Kuigoua worked for the Veterans Department as a registered nurse at the Knight Veterans Home. The Knight Home, as we will refer to it, is in Lancaster, California.

Kuigoua’s employment with the Department ended in October 2018. The Department fired him after determining he sexually harassed women and delivered substandard care that injured patients.

Kuigoua appealed his termination to the State Personnel Board, which, after a six-day hearing, rejected his appeal. The administrative law judge ruled Kuigoua’s dismissal was just and proper. Unsuccessful in altering this ruling were Kuigoua’s petition for reheating, his petition for writ of mandate, his appeal of the writ denial, and his 2022 petition for review by the California Supreme Court.

In short, from 2018 to 2022, Kuigoua attacked the Department’s 2018 decision to fire him, but his attacks failed.

B

Just before his State Personnel Board hearing, on April 2, 2019, Kuigoua filed an administrative charge of employment discrimination. He filed this charge concurrently with the California Department of Fair Employment and Housing and the federal Equal Employment Opportunity Commission. (See Clark v. Superior Court (2021) 62 Cal.App.5th 289, 308, fn. 21, 276 Cal.Rptr.3d 570 (Clark) [work sharing agreements between the Equal Employment Opportunity Commission and the Department of Fair Employment and Housng mean complaints filed with one agency are filed with the other as well].)

We describe Kuigoua’s charge, which is central to this appeal.

Kuigoua filled out an official one-page form that allowed claimants to present their charge either to the Equal Employment Opportunity Commission, or to the ‘FEPA" (local Fair Employment Practices Agency), or both. Kuigoua checked the box for the Equal Employment Opportunity Commission. The Commission investigated this charge. We refer to Kuigoua’s completed form as the Commission Form.

One section of the Commission Form required complainants to identify the nature of their complaints. It was titled "DISCRIMINATION BASED ON," and it directed complainants to "Check appropriate box(es)." Kuigoua checked the boxes for "SEX" and "RETALIATION." He checked no other box. In particular, Kuigoua did not check boxes for discrimination on the basis of race, color, religion, national origin, age, disability, genetic information, or "other (specify)."

In the section titled "DATE(S) DISCRIMINATION TOOK PLACE," Kuigoua wrote the earliest date was June 12, 2018 and the latest date was October 1, 2018.

Below these areas on the form is a section titled "THE PARTICULARS ARE (If additional paper is needed, attach extra sheet(s)):."

In this area, Kuigoua wrote the following, without an attachment. We add italics for emphasis.

"I. On or about 11 May 2015, I began my employment with the California Department of Veteran Affairs as a Registered Nurse, and my last position with the company was Registered Nurse. On or about 12 June 2018, and again on 15 July 2018 I filed an internal complaint. Beginning on or about 12 June 2018 and continuing to 01 October 2018, I was subjected to different terms and conditions of employment by Manager Julian Manalo, including but not limited to; being denied any available overtime. From in or around 20 August 2018 to on or about 01 October 2018, I was issued written discipline. Other similarly situated co-workers, not of my protected class, were not disciplined for same or similar reasons. I informed Respondent of the disparate treatment; however, no action was taken to investigate or to promptly correct. On 01 October 2018, I was discharged.

"II. I was informed by Respondent that the reason for my discharge was due to me sexually harassing two other employees and failing to show a concern for patient care.

"III. I believe I was discriminated against because of my sex (Male), and I was retaliated against for engaging in a protected activity, in violation of Title VII of the Civil Rights Act of 1964, as amended."

Kuigoua signed the form on April 2, 2019.

To summarize, Kuigoua’s Commission Form reported that, during three and a half months in 2018, someone discriminated against Kuigoua on the basis of Kuigoua’s male gender. Kuigoua also suffered retaliation, apparently for reporting this discrimination. The retaliation took the form of denying Kuigoua the opportunity to earn overtime pay. The Department failed to ameliorate these problems and finally discharged Kuigoua altogether, Kuigoua’s direct antagonist was Julian Mana lo.

An equal opportunity officer named Robert Hennig investigated these charges.

Hennig reported that Manalo was a supervising administrator at the Veterans Home in West Los Angeles.

The West Los Angeles veterans facility is some 60 miles south of the Knight Home for veterans in Lancaster.

Hennig found no evidence Kuigoua had suffered discrimination because of his male gender. Neither had Kuigoua been sub- jected to retaliation for engaging in protected activity.

The Department of Fair Employment and Housing, having received notice of the complaint from the Commission, gave Kuigoua a right-to-sue notice.

C

On March 5, 2020, Kuigoua sued the Veterans Department in state court on state statutory claims. His second amended complaint is the operative complaint.

This complaint asserted four causes of action. The first is "Unlawful Gender, Sex, and/or Sexual Orientation Discrimination and Harassment (Cal. Gov. Code § 12900, et seq.)." The second is "Unlawful Race, Color, and/or National Origin Discrimination and/or Harassment (Cal. Gov. Code § 12900, et seq.)." Third is "Failure to Prevent Unlawful Discrimination and/or Harassment Based on Gender, Sex, Sexual Orientation, Race, Color, and/or National Origin (Cal. Gov. Code § 12900, et seq.)." The fourth claim is "Retaliation Based on Gender, Sex, Sexual Orientation, Race, Color, and/or National Origin (Cal. Gov. Code § 12900, et seq.)."

Kuigoua’s factual allegations in this complaint cover about eight pages. We first summarize, and then describe in more detail, these allegations.

Kuigoua’s operative complaint asserts four theories.

1. He suffered sexual harassment.

2. He suffered harassment based on his race or on his immigrant status.

3. His employer failed to prevent this sexual and racial harassment.

4. The harassers retaliated against him after he lodged internal complaints against them.

Kuigoua’s factual allegations supported his claims.

Kuigoua alleged that, during the roughly three and a half years that he worked at the Knight Home, two people in the maintenance department oppressed him. These people were Mac Smith and Marcelo Quintua.

Mac Smith was working at the Knight Home when Kuigoua arrived. Smith began taunting and threatening Kuigoua on a regular basis soon after Kuigoua started in 2015. Smith called Kuigoua "lazy," "monkey," and "Uncle Tom," said he should "go back to Africa," and accused him and other immigrants of not being "real Americans" and coming to the United States only to "steal jobs." Smith told Kuigoua he would "fuck [him] up" and threatened to report him for unknown reasons. Smith retired in November 2017.

Marcelo Quintua was the Chief of Plant Operations at the Knight Home throughout Kuigoua’s employment. A few months after Kuigoua was hired, Quintua began making gestures that initially confused Kuigoua, but that he came to understand were veiled romantic overtures. Kuigoua asked Quintua to stop this behavior and told Quintua he was not gay, but Quintua persisted.

In March 2018, Kuigoua met with investigators from the Equal Employment Opportunity Commission who were looking into allegations by female employees against Smith. Kuigoua told the investigators about his own problems with Smith. No one followed up with him about this revelation.

In April or May 2018, Kuigoua responded to a resident’s maintenance request. He encountered Quintua, who yelled and cursed at Kuigoua, threatened to have him fired, and followed after Kuigoua to prolong the verbal assault.

Kuigoua had three meetings with Elvie Ancheta, the administrator in charge at the Knight Home during the latter part of Kuigoua’s tenure. Kuigoua met with Ancheta and other administrators at the Knight Home concerning his struggles with Smith and Quintua. At each meeting, Ancheta said she would do something, either by investigating further and speaking with Quintua or by holding a group meeting to mediate the problem. These solutions never materialized.

On April 26 or June 4, 2018, Kuigoua gave Ancheta a written summary of his allegations concerning Quintua and told her that he wanted to file a formal internal complaint. According to Kuigoua, Ancheta did not follow up...