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Teri Manuel et al v. Department of Corrections and Rehabilitation et al

March 29, 2012

TERI MANUEL ET AL., PLAINTIFFS AND APPELLANTS,
v.
DEPARTMENT OF CORRECTIONS AND REHABILITATION ET AL., DEFENDANTS AND RESPONDENTS. JAY SCHIEVELBEIN, PLAINTIFF AND APPELLANT,
v.
DEPARTMENT OF CORRECTIONS AND REHABILITATION ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. 07AS03273) (Super. Ct. No. 34200800003646CUWTGDS)

The opinion of the court was delivered by: Mauro , J.

Manuel v. Dept. of Corrections

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Teri Manuel and Jay Schievelbein are former employees of the California Department of Corrections and Rehabilitation (CDCR). They sued CDCR and prison Warden Matthew Kramer, alleging that Kramer sexually harassed Manuel and that Kramer and CDCR retaliated against Manuel and Schievelbein for complaining about the harassment. The trial court granted the summary judgment motions filed by CDCR and Kramer.

Manuel and Schievelbein contend on appeal that the trial court erred in (1) sustaining the evidentiary objections asserted by CDCR and Kramer; (2) finding no triable issue of material fact regarding whether Kramer subjected Manuel to hostile environment sexual harassment; (3) finding no triable issue of material fact regarding whether CDCR retaliated against Manuel and Schievelbein because they engaged in protected activity; (4) ruling that Manuel did not plead a quid pro quo sexual harassment cause of action and that there was no triable issue of material fact regarding whether Kramer subjected Manuel to quid pro quo sexual harassment; and (5) awarding attorney's fees to CDCR pursuant to Government Code section 12965.

We conclude that (1) except as to exhibit 17 proffered by Manuel and Schievelbein, the trial court did not err in sustaining the evidentiary objections asserted by CDCR and Kramer; (2) based on the totality of the circumstances, no reasonable juror could find conduct that was sufficiently severe or pervasive to alter the conditions of Manuel's employment and create a hostile or abusive work environment; (3) Manuel and Schievelbein failed to establish a causal connection between their protected activity and adverse employment actions; (4) Manuel stated a claim for quid pro quo sexual harassment, but she failed to establish a triable issue of material fact regarding a causal connection between her resistance to Kramer's conduct and tangible employment actions; and (5) the trial court did not abuse its discretion in finding that the causes of action asserted by Manuel and Schievelbein lacked a factual basis and in granting CDCR's request for attorney's fees.

We will affirm the judgment.

BACKGROUND

In relevant part, Manuel's first amended complaint asserts claims against CDCR and Kramer, including causes of action for sexual harassment and retaliation under the Fair Employment and Housing Act (FEHA), and a cause of action for intentional infliction of emotional distress. Schievelbein's complaint asserts claims against CDCR, including a cause of action for retaliation under the FEHA, and a cause of action for intentional infliction of emotional distress.

The following facts are drawn from the record and the parties' statements of undisputed material facts, except where evidentiary objections were sustained by the trial court.

Manuel began working for CDCR in 1979. Between June 2005 and September 6, 2006, Manuel was a facility captain at Folsom State Prison (the Prison).

Schievelbein began working for CDCR in 1981. He was an associate warden at the Prison and Manuel's direct supervisor. Schievelbein reported to the Prison's chief deputy warden Mark Shepherd, with whom Manuel had a consensual romantic relationship. Manuel did not publicize her romantic relationship with Shepherd.

Kramer was assigned to the Prison in June 2005 to fill the position of warden. Following a vetting process, in which the Office of the Inspector General (OIG) investigated Kramer's fitness for the position of warden, the Governor confirmed Kramer as warden of the Prison in May 2006.

Manuel's hostile environment sexual harassment claim is based on the following events which occurred over a six- or seven-month period beginning in June or July 2005 and ending in November or December 2005.

Almost immediately upon his arrival at the Prison, Kramer asked Manuel whether she was married or single, when she got a divorce, whether she was dating anyone, who she was dating, how many children she had, and what her children did.

The first incident of alleged harassment by Kramer occurred at an executive staff meeting in July or August 2005. When Manuel arrived at the meeting, Kramer patted an empty chair next to him and told Manuel to sit next to him. Kramer sat very close to Manuel, with his arm touching Manuel's arm. He whispered "chitchat" type things in Manuel's ear. Manuel could not recall what Kramer whispered to her but testified that Kramer's statements were not sexual in nature. On three or four occasions, Kramer patted an empty chair next to him, indicating that Manuel should sit next to him at a meeting.

A few months after Kramer began working at the Prison, OIG held confidential interviews with the Prison managers, including Manuel and Schievelbein, as part of Kramer's vetting process. After Manuel's OIG interview, Kramer stood two inches from Manuel, forcing her to back up against the wall, and asked Manuel what the deputy inspector general asked her during her interview. Kramer did not say anything threatening to Manuel, but Manuel was intimidated by Kramer's size and afraid that if she did not answer Kramer's question her position at the Prison could be in jeopardy. No part of Kramer's body touched Manuel during the incident.

Around fall 2005, following an executive meeting, Manuel asked Kramer for his contact information for work purposes. Kramer replied, "I have a special number for you" and gave Manuel his cell phone and hotel room numbers.

In about October 2005, during a break in a class about promoting a positive prison culture, Kramer came up behind Manuel, placed his arm around her shoulders, and guided her to the parking lot. Kramer kept his arm around Manuel's shoulders for two to three minutes until they reached the parking lot, where they spoke about the class.

Kramer also asked Manuel to join him for drinks three times. On one occasion, when Kramer, Manuel and Shepherd were leaving the Prison, Kramer invited Manuel and possibly Shepherd to have a drink at Kramer's hotel. Two or three weeks before or after this incident, while talking with Manuel on the telephone about prison business, Kramer told Manuel he was having margaritas at his hotel and invited Manuel to stop by and have a margarita. On the third occasion, while discussing business and talking at length about where Kramer should move in the Sacramento area, Kramer told Manuel she could stop by his hotel any time for drinks. Manuel declined Kramer's drink invitations.

According to Manuel, Kramer's sexual conduct ended in November or December 2005. Manuel and Schievelbein contend that CDCR's retaliation began in December 2005 or January 2006.

Manuel and Schievelbein contend that their employment was terminated in retaliation for their complaints about the sexual harassment. CDCR dismissed Manuel and Schievelbein based on their alleged dishonesty and misconduct in addressing the falsification of documents by other employees. The circumstances arose from a July 30, 2005 riot at the Prison. On that date, Sergeant Keeley Stevens responded to an alarm. Stevens saw inmates converging on the 1100 dorm, several inmates fighting, and a "large group" of inmates striking an inmate named Tucker on his upper torso and head. Stevens used pepper spray on "an unknown number" of inmates and directed Officer Shawn Stewart to secure a group of six inmates whom Stevens had pepper-sprayed. Stewart later identified these inmates using their "bed cards."

A crime/incident report dated July 30, 2005, identifying Stevens as the reporting officer, said Stevens saw "several unidentified inmates" beating Tucker, and Stevens sprayed an "unknown number" of inmates with pepper spray.

In addition, a crime/incident report and supplemental reports prepared by Stewart said that Stevens directed Stewart to secure a group of inmates but Stevens did not tell Stewart why the inmates had to be secured. The reports did not state that the inmates Stewart identified using "bed cards" were the inmates who assaulted Tucker.

CDC 115 forms or rules violation reports (115s) were subsequently prepared for the July 30, 2005 incident. The 115s, dated August 11, 2005, identified Stevens as the reporting employee and Lieutenant Natasha Norris as the reviewing supervisor. The 115s stated that Stevens saw approximately six inmates -- later identified as inmates Arreguin, Barba, Contreras, Gonzales, Hernandez and Paniagua -- striking Tucker, and Stevens directed Stewart to secure the inmates striking Tucker.

But on October 3, 2005, Stevens reported to Captain M. Williams that Stevens did not prepare or sign the 115s relating to the attack on Tucker. Stevens reported that on August 13, 2005, Norris told Stevens, "By the way, you wrote six 115's on that incident at the camp" and when Stevens asked if he needed to review and sign the 115s, Norris replied, "No. That is already done." Stevens also reported that when Lieutenant Rick Vickrey and Officer Russell Brizendine questioned Stevens about the identification of an inmate in the 115s, Stevens responded that he could not answer their questions. Norris subsequently admitted authoring the 115s and signing Stevens's name on them.

Captain Williams requested an office of internal affairs (IA) investigation based on Stevens's allegations against Norris. Williams's request for investigation alleged that Norris had "falsified" the 115s and forged Stevens's signature. Lieutenant Tommy Glensor prepared a CDCR Form 989 (989 Form) on October 11, 2005, requesting an IA investigation into Stevens's allegations. Kramer signed the 989 Form that Glensor prepared.

Norris admitted to Manuel and Schievelbein that she signed Stevens's name on the 115s. Norris told Manuel and Schievelbein that Stevens authorized her to sign his name. Manuel conceded that Norris engaged in misconduct by signing Stevens's name. Nevertheless, Manuel and Schievelbein agreed that nothing more than a "counseling chrono" was warranted for Norris's misconduct.

On October 25, 2005, Manuel signed an employee counseling record (Counseling Record) directed to Norris based on the 115s incident. The Counseling Record stated that Stevens agreed with the content of the 115s and authorized Norris to sign his name. The Counseling Record stated that further investigation was unnecessary given Norris's performance ratings and lack of disciplinary record. The Counseling Record also stated that it was not an adverse action against Norris.

Nonetheless, Glensor prepared a 989 Form requesting direct action against Norris. The 989 Form was dated November 29, 2005, and was signed by Shepherd. IA approved the request for direct action against Norris in a memorandum dated January 13, 2006.

On August 31, 2006, Kramer asked IA to interview Norris and Stevens about the 115s incident and "review for proper penalty" because Norris and Stevens had given conflicting statements about what happened. Vincent Schumacker conducted the requested IA investigation. According to Schumacker, Manuel and Schievelbein became the subject of investigation in the course of his inquiry into misconduct by Norris.

IA interviewed Manuel, Schievelbein and Shepherd about the 115s incident on September 6, 2006. By that point, Manuel was aware that she was also under investigation for dishonesty and misconduct regarding the aftermath of the 115s incident. Manuel did not complain about harassment or retaliation by Kramer during her investigatory interview.

Norris was fired in October 2006 for falsifying and signing Stevens's name on the 115s and falsely stating during her investigative interview that Stevens had agreed with the content of the 115s and permitted her to sign his name.

Manuel first complained to CDCR on or about October 24, 2006, reporting sexual harassment, dishonesty, retaliation, and inappropriate and unethical management decisions by Kramer. At the time, Norris had already been dismissed from CDCR. On November 1, 2006, Schievelbein also submitted a complaint against Kramer to Kramer's superiors (director of adult institutions John Dovey, deputy director of adult institutions Scott Kernan, and associate director Anthony Kane). This was the first complaint Schievelbein made concerning Kramer's conduct toward Manuel.

On January 26, 2007, Manuel filed a complaint with the California Department of Fair Employment and Housing, alleging sexual harassment and retaliation.

CDCR issued a notice of adverse action dated March 15, 2007, terminating Manuel's employment effective May 1, 2007, based on Manuel's conduct in connection with the 115s incident. Vickrey and Brizendine were also fired based on conduct relating to the incident. Associate director Anthony Kane signed the notice announcing Manuel's discharge.

A notice of adverse action dated March 15, 2007, was also issued to Schievelbein, terminating his employment with CDCR effective May 1, 2007, based on the 115s incident. The effective date of the dismissal was later amended to May 28, 2007.

In addition to her termination, Manuel contends that she was also previously demoted in retaliation for her protected conduct. On December 6, 2005, management services technician Lauren Wagner informed Manuel that Manuel had been selected to take a random drug test. Wagner asked Manuel if she could take the test that day. According to Wagner, Manuel asked to delay the ...


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