Filed 1/24/00

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

Alcala & Velez, Carlos M. Alcala and Raymond A. Mills for Plaintiffs and Appellants.

Lozano, Smith, Smith, Woliver & Behrens, Peter K. Fagen and Eileen M. O’Hare for Defendant and Appellant.

Richard Ruiz and his wife, Frances Gantong-Ruiz (hereinafter Ruiz and Gantong, respectively), were employed by the California Department of Corrections (Department). They filed suit against the Department and the Central California Women’s Facility (CCWF) for discrimination and harassment. The trial court entered a judgment on the pleadings against Ruiz for failing to exhaust his administrative remedies and a judgment for nonsuit against Gantong for failing to produce evidence of discrimination. The court also ordered plaintiffs to pay attorney fees and costs. In the published portion of this opinion, we will conclude Ruiz did exhaust his administrative remedies, and, accordingly, will reverse the judgment on the pleadings. In the unpublished portion of this opinion we shall reverse the judgment against Gantong, finding she did present sufficient evidence of discrimination to survive a motion for nonsuit. We shall also reverse the order for attorney fees and costs. Finally, we will affirm the trial court’s denial of the Department’s motion for summary judgment, an issue raised in a cross-appeal filed by the Department in the event we reversed any portion of the judgment.

Ruiz and Gantong were employed by the Department and were assigned to the CCWF. Ruiz worked as a prison guard; Gantong worked in the Investigative Services Unit (ISU) as an investigator and evidence officer. She went by the name Gantong so the inmates would not know she was married to one of the guards.

Gantong developed a reputation as an excellent investigator, uncovering numerous drug connections from outside visitors. She was named "employee of the month" in February 1994, a distinction that was mentioned in a staff newsletter with her approval. However, she later contended the publication jeopardized her security because it contained personal information that could be viewed by inmates who worked the printing press.

Sometime after the article appeared the ISU learned it would receive a drug-detecting canine. There was a delay and the dog did not arrive. Because Gantong was so successful in detecting and intercepting drugs, there developed a running joke that Gantong was the drug-detecting canine. Cagie Brown, the head of the ISU, took a picture of a canine out of her training manual and placed a copy of Gantong’s face over the dog’s face. Gantong never objected to the picture and kept a copy of it in her office for weeks. Brown testified the joke was meant as a tribute to Gantong’s ability to find drugs and that Gantong had interpreted it as such. However, Gantong testified she felt uncomfortable with the joke and was insulted by it. Shortly thereafter, Gantong, Brown, and Rick Allen, another member of the ISU, planned a future trip to Lake Tahoe with others.

Over three months later, in May 1994, certain inmates alleged Ruiz had engaged in sexual misconduct with another inmate. The watch commander interviewed the inmate in question and learned Ruiz had isolated and then coerced her to engage in certain sex acts. The commander turned the investigation over to Allen and Brown, who later discovered two other inmates had also experienced similar encounters with Ruiz. Brown and Allen spoke with Gantong about the investigation and explained they had a job to do; Gantong responded she understood. Brown withdrew from the Lake Tahoe trip, telling Gantong the integrity of the investigation would be impaired otherwise. On another occasion, Brown told Gantong in the presence of another that she could not socialize with her and that she was planning on transferring Gantong out of the ISU. Gantong later testified Brown told her she felt as if she held the fate of Gantong’s family in the palm of her hand; Brown denied making that statement. Gantong expressed resentment that their relationship was changing and did not want to be treated any differently than before the allegations were made. Although Gantong remained in the ISU and did some investigative work, Brown assigned her to other duties as well because she feared Gantong might retaliate against the inmates for their allegations against her husband. Those duties, however, were within the scope of Gantong’s employment responsibilities.

Gantong went on medical stress leave for three weeks in July 1994. Precipitating this decision was an order given by Brown that she clean out the evidence locker, which, in Gantong’s view, was indicative of the degrading treatment she had received since the allegations against her husband surfaced. Gantong later acknowledged on cross-examination that it was her duty as evidence officer to clean out the locker on occasion. However, she testified Brown had placed an increasing emphasis on assigning her menial duties once the allegations surfaced. She also said Brown’s overall demeanor and attitude toward her had become increasingly aloof, abrupt, and withdrawn. She said the atmosphere of the office had changed and that Brown would speak to her only when necessary.

Brown testified she did feel uncomfortable with Gantong in the unit and was simply making the best of an awkward situation. In an effort to be professional and objective, Brown admitted she became somewhat distant and did minimize any socializing with Gantong. She testified she asked Gantong to transfer out of the unit because, in her view, it was the appropriate action to take. However, she left that decision to Gantong. On cross-examination, Brown testified her behavior would have been the same had the investigation involved Gantong’s brother or father.

Upon Gantong’s return from stress leave, Brown asked her to turn in her key to Brown’s office. She did so because she did not consider it appropriate that Gantong have access to her office, which contained physical evidence of the Ruiz investigation. Gantong transferred out of the ISU the following day and continued her employment at CCWF in another department until September 1994. At that time her doctor placed her on sick leave; she was not released to return to work until August 1996. She did not return.

Richard Ruiz was terminated from employment in September 1994 upon the conclusion of the ISU’s investigation into his alleged sexual misconduct with inmates. Though he did undergo a pre-termination Skelly hearing, Ruiz initiated and then withdrew review of his termination with the State Personnel Board (Board).

In early October 1994, Ruiz and Gantong each filed a complaint with the Department of Fair Employment and Housing (DFEH) alleging discrimination in violation of the California Fair Employment and Housing Act (FEHA). The DFEH sent both parties a "right to sue" letter shortly thereafter. On May 2, 1995, they filed suit in Madera County Superior Court against the Department, the CCWF, Teena Farmon (the warden), and James Gomez (director of the Department). The first cause of action alleged Ruiz had been discriminated against based upon his national origin, sex, and marital status. The second cause of action alleged Gantong had been harassed and discriminated against based upon her national origin, sex, and marital status.

Defendants filed a motion for summary judgment in August 1996. The court granted the motion as to the individual defendants only and the case went to trial against the Department and CCWF (hereafter collectively referred to as Department) on September 30, 1996.

On the first day of trial, the Department filed a motion for judgment on the pleadings against Ruiz, contending he had failed to exhaust his administrative remedies. The court granted the motion after concluding "[Ruiz] failed to exhaust his administrative remedies in not going to the state personnel board who could have granted him full relief…."

On October 10, at the close of Gantong’s case, the court granted the Department’s motion for nonsuit after concluding she had failed to produce any evidence of discrimination. Four months later, on February 10, 1997, the court granted the Department’s motion for attorney fees and costs. It ordered Ruiz and Gantong jointly and severally liable for $109,847 in attorney fees and $9,100.31 in costs. In addition, the court ordered Gantong individually to pay $19,648 in attorney fees and $5,601 in costs. Ruiz was held individually liable for $122 in attorney fees.

Ruiz and Gantong filed timely appeals. In the event appellants are successful, the Department cross-appealed the court’s denial of its motion for summary judgment.

Ruiz contends the trial court erred when it granted the Department’s motion for judgment on the pleadings after determining he had not exhausted his administrative remedies through the Board. He cites State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422 (State Personnel Bd.) as authority for the proposition that a civil service employee need not necessarily seek review from the Board but, rather, has the option of pursuing an administrative remedy either through the Board or the DFEH.

In State Personnel Bd., appellants unsuccessfully applied for positions with the California Highway Patrol. They appealed to the Board and also filed complaints with the DFEH. The DFEH found cause to believe unfair employment practices had occurred and moved forward on the claim. The Board thereafter filed an action to enjoin the DFEH from exercising jurisdiction over the claims. The trial court granted the injunction, concluding article VII of the California Constitution gave the Board exclusive jurisdiction over all matters involving state civil service employees. The California Supreme Court reversed and dissolved the injunction. It found state civil service employees were covered by the FEHA, as are private employees. It then noted that the differing purposes of each agency, as well as the different procedural and evidentiary guidelines that are followed in either forum, supported the conclusion that the agencies maintained concurrent jurisdiction. Finally, the Court found application of the FEHA to state employees constitutional. "[T]he Legislature is not restrained by article VII of establishing other agencies, such as those established by the FEHA, whose specialized watchdog functions might involve consideration of matters also within the purview of the Board. [Citation.]" (Id. at p. 439, italics omitted.)

Ruiz contends the holding in State Personnel Bd. should be interpreted to mean an aggrieved state employee has the choice of seeking redress from either the Board or the DFEH. He chose the latter and, upon receipt of a "right to sue" letter, sought redress in the courts in accordance with the FEHA. The Department counters that a careful reading of State Personnel Bd. reveals that the case simply held that state employees are entitled to pursue their discrimination claims with the DFEH in addition to their claims with the Board. It does not, the Department argues, hold that state employees may entirely forgo review through the Board. It is the Department’s position that state employees must pursue their claims with the Board, even if they also elect to seek relief with the DFEH.

We conclude Ruiz is correct. We find the principles set forth in State Personnel Bd. compel us to conclude that state employees are entitled to seek review of their claims in whichever forum they consider appropriate. "The Legislature’s intent was to give public employees the same tools in the battle against employment discrimination that are available to private employees. The FEHA was meant to supplement, not supplant or be supplanted by, existing antidiscrimination remedies, in order to give employees the maximum opportunity to vindicate their civil rights against discrimination …." (State Personnel Bd., supra, 39 Cal.3d at p. 431.)

We interpret the language and meaning of State Personnel Bd. to support an expansive view of the avenues aggrieved state employees may pursue when filing their complaints. The Supreme Court took care to explain the differences between the two forums, emphasizing that the antidiscrimination provisions of the FEHA were more extensive than those in the Civil Service Act. "[G]iven the differences between the two statutory schemes, the Legislature’s desire to include state employees within the purview of the FEHA, notwithstanding their coverage by the antidiscrimination provisions of the Civil Service Act, is understandable. The procedures, protections and enforcement services available to discrimination claimants under the FEHA go beyond those available under the Civil Service Act…." (State Pesonnel Bd., supra, 39 Cal.3d at p. 431, fn. omitted.) As such, we cannot agree all state employees who allege they were terminated for discriminatory reasons must file a claim with the Board. Instead, they may conclude it would be in their best interest to focus their energies on a claim with the DFEH. Also, the Supreme Court’s attention on the different purposes of the two agencies suggests it would be proper for a potential claimant to consider which forum would be more appropriate for his or her cause of action. The court noted the Board’s responsibilities center on ensuring that state appointments are based upon merit (§ 18500), while the FEHA was implemented to eliminate discrimination and to vindicate civil rights. (§ 12920.) Thus, aggrieved state employees may determine the facts underlying the complaint better comport with the purpose behind the FEHA and, accordingly, pursue redress solely with the DFEH.

Review of additional cases indicates a strong public policy of giving employees the opportunity--in a process that is economical, expedient, and straightforward--to challenge alleged discriminatory employment practices in whichever forum they choose. "[The Legislature intended] to create new rights within the FEHA statutory scheme while leaving existing rights intact …." (Jennings v. Marralle (1994) 8 Cal.4th 121, 135; see also City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143; Rojo v. Kliger (1990) 52 Cal.3d 65; Swartzendruber v. City of San Diego (1992) 3 Cal.App.4th 896.) Though "we do not decide cases based on trends" (City of Moorpark v. Superior Court, supra, 18 Cal.4th at p. 1156), we cannot ignore the principles that underscore these cases. Clearly, it is the policy of both the Legislature and the courts to give employees the opportunity to seek redress of their discrimination claims in a process that is as simple and procedurally clear as possible. This must include the option of filing claims in multiple forums or just one, whichever one that might be. Indeed, the Department’s argument that state employees must pursue their claims through the Board has previously been rejected in rather summary fashion.

We are also mindful of the practical considerations state employees face upon the decision to file a claim. To conclude that state employees must seek review of their discrimination claims through the Board, regardless of their decision to pursue that claim with other agencies, places a burden upon those aggrieved individuals that private employees do not share. Aside from the potential equal protection problems this raises, it also presents the possibility of a procedural minefield. Not only must the state employee, as well as the state employer, struggle to comply with the substantive and procedural requirements of each agency, but there arises a potential problem with the statute of limitations. Claimants who unsuccessfully appeal their termination with the Board must file a writ in the trial court if they wish to challenge the findings of the Board. Otherwise, they are bound by the factual findings of the Board in future litigation. (Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 240-244; Oquendo v. California Institution for Women (1989) 212 Cal.App.3d 520.) In the meantime, however, these same claimants must consider the strict statutory deadlines of the DFEH if they wish to file a subsequent or simultaneous complaint with that agency as well. According to the Department, claimants who receive their "right to sue" letters from the DFEH cannot initiate their lawsuits because they must wait until their administrative process through the Board is exhausted, a wait that could affect filing deadlines with the trial court. Moreover, to avoid collateral estoppel of issues decided by the Board, these same claimants must also wait until their writ to the trial court has been decided before initiating legal action. (Ibid.) Though the doctrine of equitable tolling could possibly remedy this problem, the fact remains that the failure of state employees to meet statutory deadlines would be a potential argument by employers in future litigation, adding another obstacle for employees.

Finally, we note our holding today comports with the well-settled doctrine of exhaustion of administrative remedies. "[T]he rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act…." (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292.) In this instance, Ruiz exhausted the administrative process required under the FEHA before initiating a lawsuit in the courts. That is the administrative forum he chose, and he fulfilled its requirements before turning to the courts.

For these reasons, we hold state employees may pursue their claims of employment discrimination with either the Board or the DFEH or both. Accordingly, we find Ruiz did exhaust his administrative remedies upon receipt of his "right to sue" letter from the DFEH. He thereafter initiated legal action and his case was properly brought before the court. Therefore, we conclude the trial court erred when it granted the Department's motion for judgment on the pleadings.

Gantong alleges the court erred when it granted defendant’s motion for nonsuit based upon her failure to present evidence of discrimination and harassment. To prevail upon a motion for nonsuit, the defendant must show the evidence presented by the plaintiff is insufficient to permit a favorable verdict as a matter of law. "‘In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give "to the plaintiff[‘s] evidence all the value to which it is legally entitled,… indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor …."’ [Citations.]" (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838-839.)

When reviewing a successful motion for nonsuit, we are "guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. ‘The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.’ [Citations.]" (Carson v. Facilities Development Co., supra, 36 Cal.3d at p. 839.)

Our review begins with setting forth the framework of Gantong’s case. Her complaint states that in February 1994 Gantong’s supervisor, Cagie Brown, began to harass and discriminate against her because of her race, gender, and marital status. (§ 12940.) She contended three events triggered or represented Brown’s allegedly egregious conduct: the "employee of the month" award; the canine picture; and the allegations of sexual misconduct brought against Gantong’s husband by the inmates. However, because we find Gantong presented some evidence to support her claim that Brown treated her unfairly once the allegations against her husband surfaced, we limit our discussion to that occasion.

In late May 1994, certain inmates accused Gantong’s husband of sexual misconduct and an investigation, headed by Brown and Allen, was initiated. Gantong claimed at trial that Brown treated her differently once the investigation began, acting aloof and distant and making her feel unwelcome in the ISU. She also alleged Brown threatened to transfer her out of the department. She testified Brown assigned her menial duties that were technically part of her job description, but nonetheless were indicative of Brown’s efforts to demoralize her. She testified she felt betrayed when Brown asked for her office key because it unfairly suggested she was no longer trustworthy.

From this record, we cannot discern any effort by Gantong to prove Brown’s behavior was motivated by discrimination or harassment based upon race or gender. There is nothing in the record to suggest Gantong was attempting to prove Brown’s behavior, after the Ruiz allegations arose, was premised upon Gantong’s status as a female or as a Hispanic. "The plaintiff must produce evidence which permits an inference of illegal intentional discrimination." (Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1755; Ellison v. Brady (9th Cir. 1991) 924 F.2d 872, 875-876.)

However, the allegation of discrimination based upon marital status is less clear. Though there appears no definition of marital status anywhere in the statute, we find section 12940, subdivision (a)(3) dispositive in the context of this case. That provision states:

Thus, an employer, though barred from discriminating against an employee based upon marital status, may nevertheless take reasonable steps to ensure an appropriate working environment when an employee has a spouse working in the same department or facility. In other words, an employee with a spouse working in close proximity will not prevail on a cause of action against his employer for discrimination based on marital status if the employer’s disparate treatment consists of nothing more than reasonable actions taken to accommodate that situation.

With this principle in mind, we return to the facts before us. Gantong alleges Brown treated her less favorably than others in the department once the accusations against her husband surfaced. However, because Ruiz and Gantong were spouses who worked in the same facility, Gantong’s allegations must be viewed within the context of subsection (a)(3). Indeed, the issue is not one of marital discrimination per se, but rather, whether Brown reasonably regulated Gantong’s work environment after the ISU was charged with investigating Gantong’s husband.

Although Brown disputed many of Gantong’s characterizations of the workplace, our duty is to determine whether, after viewing the record in the light most favorable to Gantong, the court properly granted a motion for nonsuit. We conclude it did not. Though the record is replete with conflicting testimony, we find Gantong’s case-in-chief was sufficient to survive a motion for nonsuit. "Although a judgment of nonsuit must not be reversed if plaintiff's proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is ‘some substance to plaintiff's evidence upon which reasonable minds could differ ....’ [Citations.]" (Carson v. Facilities Development Co., supra, 36 Cal.3d at p. 839.)

Viewing the record most favorably toward Gantong, we find it does contain some substance to support Gantong’s claim that Brown’s actions were unreasonable, and, therefore, the court was required to submit that issue to the jury. Accordingly, we reverse the judgment for nonsuit on this ground. In so doing, we express no opinion on the substance of the evidence presented below, including whether Brown’s actions were unreasonable under the circumstances.

Ruiz and Gantong argue the court erroneously granted defendant’s motion for attorney fees and costs. Section 12965, subdivision (b) authorizes the trial court to award attorney fees and costs to the prevailing party for actions brought under the FEHA. That section provides in pertinent part: "In actions brought under this section, the court, in its discretion may award to the prevailing party reasonable attorney fees and costs except where such action is filed by a public agency or a public official, acting in an official capacity." Because the Department is no longer the prevailing party it is not entitled to recover under section 12965. Accordingly, we reverse the award of attorney fees and costs in its entirety.

In the event we reversed either the judgment on the pleadings or the judgment for nonsuit, the Department cross-appealed the court’s denial of its summary judgment motion against both Ruiz and Gantong. A summary judgment motion is an assertion by the moving party that no triable issue of fact exists and, therefore, the court should terminate the action without trial. (Code Civ. Proc., § 437c, subd. c.) "In reviewing an order on a summary judgment, the reviewing court employs the same process as the trial court in determining whether, as a matter of law, summary judgment was appropriate…." (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1515.)

As a preliminary matter, we review the burden of proof a defendant must sustain to prevail on a summary judgment motion. That party is entitled to summary judgment if "the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail. [Citation.] To succeed, the defendant must conclusively negate a necessary element of the plaintiff’s case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of trial…." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) Summary judgment will also be granted if the defendant can also establish a complete defense to the plaintiff’s cause of action. (Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 992-993; Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 108.) "The burden on the moving party … becomes even heavier when the summary judgment motion is based on an affirmative defense…." (Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830.) If the moving party-defendant does not sustain the burden, either by negating an element of the claim or by establishing a complete defense, the motion for summary judgment must be denied without considering whether triable issues of fact exist. (Parsons Manufacturing Corp. v. Superior Court (1984) 156 Cal.App.3d 1151, 1157.) "Only if the moving party makes the necessary showing does the court examine the responding party’s papers in opposition to determine whether they create a triable issue as to a fact material to the moving party’s showing. [Citations.]" (Southwell v. Mallery, Stern & Warford (1987) 194 Cal.App.3d 140, 143-144.)

Ruiz’s claim made these pertinent allegations:

Gantong’s claim made these pertinent allegations:

The Department’s motion for summary judgment consists of either denying or explaining Ruiz’s and Gantong’s allegations. In its statement of undisputed facts, the Department asserted the following pertinent points:

1. The investigation into the allegations against Ruiz revealed several instances of sexual misconduct against three inmates.

2. Ruiz has no personal knowledge of other investigations involving other employees.

3. Gantong saw and approved the article about her winning the "employee of the month" award before its publication. She did not complain about the award jeopardizing her security until after the allegations against her husband surfaced.

4. Gantong participated in creating the canine poster and kept a copy of it on the bulletin board in her office. She did not complain about the poster until after the allegations against her husband surfaced.

5. After the ISU was assigned Ruiz’s case, Brown told Gantong it would be better if they did not socialize. She also told Gantong it was inevitable things would not be the same between them after the investigation.

6. Edna Miller recalled Brown cupping her palms and saying she felt as though she held the fate of Gantong’s family in her hands; Miller stated she interpreted this statement to mean Brown felt the difficulties of investigating a coworker’s husband for sexual misconduct.

7. Brown pulled Gantong off of an inmate case she was working on because she had heard rumors that Gantong might retaliate against the inmates for the allegations against her husband.

8. Brown began assigning Gantong different duties to minimize her contact with inmates.

9. Brown made the best of an awkward and difficult situation; she did not coerce or intimidate Gantong in any way.

With these facts, the Department attempts to negate Ruiz’s allegation that he was terminated based upon accusations that were not only untrue, but were not of the type that would trigger discipline for Caucasian employees. With Gantong’s claims, the Department seeks to negate her allegations of discrimination and harassment when she was named "employee of the month" and when the canine poster joke was created. It also refutes Gantong’s claim that she was discriminated against based upon her marriage to Richard Ruiz. The Department argues Brown’s behavior was professional and appropriate at all times, and that any indicia of discrimination constituted nothing more than Brown attempting to accommodate an awkward situation.

Though the Department provided compelling and credible testimony to refute both claims, we find it neither conclusively negated either cause of action nor established a complete defense to them. "‘It is elementary that summary judgment is a drastic measure which deprives the losing party of trial on the merits. It therefore may not be invoked unless it is clear from the affidavits (or declarations) filed in connection with the motion that there are no triable issues of fact. (Code Civ. Proc., § 437c.) Doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. [Citations.]’ [Citation.]" (Draper Mortuary v. Superior Court (1982) 135 Cal.App.3d 533, 535.) We cannot conclude from the Department’s motion for summary judgment that Ruiz’s and Gantong’s claims were "entirely without merit on any legal theory." (Id. at p. 536.) As such, we affirm the trial court’s denial of the summary judgment motion.

The judgment on the pleadings against Ruiz is reversed and remanded. The judgment for nonsuit against Gantong is reversed and remanded. The order for attorney fees and costs is reversed in its entirety. The denial of Department’s motion for summary judgment is affirmed. Ruiz and Gantong are awarded their costs on appeal.

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Levy, J.

WE CONCUR:

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Vartabedian, Acting P.J.

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Wiseman, J.