Luna v. California Department of Corrections and Rehabilitation

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 MARIA C. LUNA, Case No. 20-cv-08097-EMC 8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTION FOR SUMMARY JUDGMENT 10 CALIFORNIA DEPARTMENT OF CORRECTIONS AND Docket No. 30 11 REHABILITATION, et al., 12 Defendants. [14] 15 I. INTRODUCTION 16 Plaintiff Maria Luna brought an employment discrimination suit against Defendants the 17 California Department of Corrections and Rehabilitation (“CDCR”) and the California Medical 18 Facility in Vacaville (“CMF”). Plaintiff claims that, while working as a registered nurse at CMF, 19 she experienced an indecent exposure incident (the “IEX”) and several other occasions which she 20 perceived as threats by an inmate patient (the “offending inmate” or “inmate patient”). Plaintiff 21 claims that she suffered physical and emotional injuries as a result of the repeated encounters and 22 Defendants failed to provide accommodations she requested to eliminate her exposure to the 23 offending inmate. Plaintiff thereafter brought a Title VII hostile work environment claim and state 24 law tort claims. 25 The Court heard Defendants’ motion for summary judgment on April 14, 2022. See 26 Defendants’ Motion for Summary Judgment (“MSJ”); Docket No. 30. Having considered the 27 parties’ briefs and arguments presented at the hearing, the Court hereby GRANTS Defendants’ 1 II. FACTUAL & PROCEDURAL BACKGROUND 2 A. Background 3 Plaintiff initially filed charges with the Federal Equal Employment Opportunity 4 Commission (“EEOC”) in September 2018 and obtained a Right-to-Sue letter on August 13, 2020. 5 See Complaint ¶¶ 8-9; Docket No. 1. She filed this suit on November 12, 2020. See Complaint. 6 In her original complaint, she alleges employment discrimination under Title VII, specifically for 7 “repetitive exposure to intimidating and hostile work environment” and “intentional/negligence 8 infliction of emotional distress due to hostile work environment.” See Complaint ¶ 5. 9 Plaintiff is a Filipino-American registered nurse and has been an employee of Defendants 10 since 2004. Opposition (“Opp’n”) at 1; Docket No. 45. During her time working at CMF, 11 Plaintiff has not encountered other incidents similar to the ones underlying this case. Opp’n at 1. 12 Plaintiff started working with the mental health unit at CMF around 2016 or 2017, and her duties 13 as an instructor include educating inmates regarding subjects on mental and medical health issues 14 and assessing inmates’ medical concerns. Plaintiff’s Deposition, Exhibit A to the Declaration of 15 Stefano Abbasciano (“Plaintiff’s Deposition”) at 12:18-24; 14:10-14. When an inmate patient 16 does not act appropriately, such as by disrupting a session, Plaintiff deals with the problem right 17 away before it escalates and calls an officer only if the inmate patient refuses to leave as 18 instructed. Plaintiff’s Deposition at 114:9-21. 19 According to Plaintiff, she works at the mental health unit because it is the only one that 20 fits her schedule, is close to her house, and is convenient for her to attend to family needs. 21 Plaintiff’s Deposition at 24:16-19; 79:20-80:1. 22 B. The IEX Incident 23 On February 9, 2018, while conducting a group class at work, the offending inmate 24 “engaged in threatening behavior towards Plaintiff by exposing himself and masturbating while 25 staring.” Opp’n at 1; Declaration of Maria C. Luna (“Luna Decl.”) at ¶¶ 2, 3. According to 26 Plaintiff, the inmate did not assault, approach, or touch her; Plaintiff escaped the classroom right 27 away and saw guards on duty outside. Plaintiff’s Deposition at 27:15-23; 29:5-17. While 1 injured at work. Plaintiff’s Deposition at 27:8-13. Plaintiff then ordered the inmate to step out of 2 the room, and guards handcuffed him and put him under temporary isolation. Plaintiff’s 3 Deposition at 28:1-9. Plaintiff later filed reports of the IEX incident to her supervisors and 4 officers on duty. Luna Decl. at ¶ 4. 5 C. Prior Encounters with the Inmate 6 The inmate at issue had a history of IEX incidents and other rule violations involving 7 violence prior to the February 9 IEX incident. See Exhibit 2 to the Declaration of Steven N. 8 Williams (“Williams Decl.”), Freeman at 63:14-19; Exhibit D to MSJ at 111-114. Plaintiff recalls 9 that, prior to the February 9 incident, that inmate could have been attending her group class for 10 over a year (“I think I had him attending my class—it could be more than a year.”), and she had 11 not had any safety concerns regarding the inmate’s presence in her classroom. Plaintiff’s 12 Deposition at 31:10-24; 34:23-35:1. The inmate once told Plaintiff when they were alone together 13 during one of her classes that he was in prison for murdering another Asian woman and that he hit 14 her head with a big rock and left her dying on the ground. Luna Decl. at ¶ 5. Plaintiff states that 15 she “didn’t take that like a threat or what because some—some inmates do tell their stories.” 16 Plaintiff’s Deposition at 56:1-15. 17 D. Subsequent Encounters with the Inmate 18 On October 12, 2018, Plaintiff noticed the offending inmate “staring at her through the 19 classroom window when she was working in her classroom.” Opp’n at 2. “Plaintiff was so 20 frightened during this episode that she could not look at the inmate, even while he stood staring at 21 her.” Opp’n at 2; Luna Decl. at ¶ 7. Defendants claim that inmates usually stay in the hallway 22 and are visible from the classroom while they wait for a doctor appointment or a group class. 23 On October 22, 2018, Plaintiff encountered the inmate in the O wing hallway, and he 24 “moved and walked towards the center of the hallway” where Plaintiff was. Opp’n at 2; Luna 25 Decl. at ¶ 8. Defendants suggest that when Plaintiff saw the inmate in the hallway, she stopped to 26 talk to janitorial staff to allow the inmate to continue walking, and the inmate was gone when she 27 finished her conversation. Plaintiff’s Deposition, at 46:10-47:15. 1 On October 26, 2018, Plaintiff submitted a CDC 128-B form1 to the Custody and Nursing 2 Supervisor stating her safety concerns. Opp’n at 3. Plaintiff claims that “Defendants failed to 3 notify Plaintiff of the outcome of the reported stalking incident” and “Defendants could not 4 identify any current staff member who may have reviewed” the 128-B form. Opp’n at 3. 5 Defendants note that, for both encounters in October, “there was no interaction, verbal 6 communication, or physical contact between Plaintiff and the inmate” and “no guard intervention 7 was required.” Plaintiff’s Deposition, at 52:10-20; 55:1-14; 73:5-74:2; 77:12-23. 8 On November 29, 2018, the inmate entered Plaintiff’s classroom unannounced and without 9 cause. The shock of this encounter “caused her severe trauma, chest pain, and hand tremors.” 10 Opp’n at 3; Luna Decl. at ¶ 9. The inmate confronted Plaintiff while standing approximately five 11 feet away from her; this incident left her distraught and she was sent home by the Nursing 12 Supervisor due to her emotional distress. Opp’n at 3. Defendants note that the inmate was in 13 Plaintiff’s classroom to ask if he could join her class, and he left after the second time she ordered 14 him to step out of the room. Plaintiff’s Deposition, at 74:10-76:2. 15 A doctor’s note dated December 13, 2018 writes: “On a psychological basis, Maria Luna 16 is restricted from working in the same building with the inmate that sexually threatened her.” 17 Exhibit 6 to Williams Decl. (“Physician’s Notes”). Similar notes were issued several times from 18 February to November. Plaintiff’s last day at work was December 12, 2018, after which she went 19 on workers’ compensation. Plaintiff’s Deposition, at 81:13-23. 20 E. Plaintiff’s Requests and Defendants’ Responses 21 Plaintiff appears to have made several requests to Defendants on different occasions 22 following the IEX incident and the subsequent encounters. Specifically: 23 (1) Segregation, disciplinary action, and prosecution 24 Plaintiff appears to have expected that “[w]hen an inmate commits the act of indecent [25] 1 According to the California Code of Regulations, “General Chrono means a CDC Form 128-B [26] (Rev. 4-74) which is used to document information about inmates and inmate behavior.” Cal. Code Regs. tit. 15 § 3000. “Such information may include, but is not limited to, documentation of [27] enemies, records of disciplinary or classification matters, pay reductions or inability to 1 exposure, he is supposed to be removed from the general population and placed in administrative 2 segregation pending an outcome of the institutional classification committee. Following this, a 3 CDCR-115 rules violation report is issued, and the incident is referred to the local district 4 attorney’s office for felony prosecution.” Opp’n at 6. 5 (2) Zero exposure and alternative work opportunities 6 Plaintiff “asked for alternate work with zero exposure to the same inmate.” Further Case 7 Management Conference Statement (“CMC Statement”) at 3; Docket No. 22; see also Opp’n at 5 8 (“At no point during her employment was Plaintiff offered alternate accommodations or given 9 duties that kept her physically away from the offending inmate’s vicinity.”). Plaintiff appears to 10 suggest that “at the bare minimum, [Defendants should] volunteer a determination of any other 11 employment opportunities for Plaintiff.” Opp’n at 6. 12 (3) Compliance with CDCR/CMF’s policies 13 Plaintiff asserts that “Defendants failed to take prompt, appropriate and reasonable 14 responsive action in implementing and enforcing CDCR/CMF’s policies and procedures such as 15 those provided by the ‘Assessment of Threats Against Staff’ and ‘Inmate Sexual Misconduct 16 Reduction Plans.’” CMC Statement at 4-5. 17 (4) Handling of the CDC 128-B form 18 Plaintiff seems to have expected that Defendants notify her of the “outcome of the reported 19 stalking incident or that any measures were taken to address her safety concerns [specified in a 20 CDC 128-B form she submitted to the Custody and Nursing Supervisor].” Luna Opp’n at 2. 21 (5) Accommodations relating to permanent restrictions 22 Plaintiff claims that “Defendants, and particularly the Disability Management Unit, is 23 responsible for ensuring there is discussion with Plaintiff concerning the permanent restrictions, 24 her interests in pursuing employment, and whether she wishes to maintain employment within the 25 agency. Despite a determination that the restrictions were permanent in November last year, such 26 a discussion has not happened till date.” Opp’n at 7. 27 (6) Other accommodations 1 crossing paths with Plaintiff. Opp’n at 7. For example, “per recent testimony, it is determined 2 possible to use walkie-talkies and at the very least, intimate Plaintiff if the offending inmate is in 3 the hallway.” Opp’n at 7 (citing Exhibit 2 to Williams Decl., Freeman at 34:14-22). “Another 4 possible option would have been banning the offending inmate from Plaintiff’s classrooms, but 5 this was also apparently not considered by Defendant.” Opp’n at 7 (citing Exhibit 1 to Williams 6 Decl., Moeckly at 66:14-242). 7 Overall Plaintiff claims that there is no evidence that Defendants took any action 8 whatsoever in response to her request for accommodation. Opp’n at 2. She also claims that “there 9 is no evidence that the offending inmate was even banned from Plaintiff’s classrooms.” Opp’n at 10 2. 11 Defendants contends that, as Plaintiff requested, CDCR permanently banned the Inmate 12 Patient from attending Plaintiff’s group classes. MSJ at 7; Exhibit C to Abbasciano Decl. ISO 13 MSJ; Docket No. 30-1; Plaintiff’s Deposition, at 31:10-16; 38:13-17; 44:24-45:6. Defendants 14 claim that they took the maximum actions allowed in an effort to discourage and punish the 15 inmate. MSJ at 7. Specifically, the Inmate Patient was found guilty of the charge, disciplined to 16 the maximum extent allowed in CMF’s disciplinary system,3 and referred to the local Solano 17 County District Attorney for prosecution. Exhibit D to Abbasciano Decl. ISO MSJ. 18 Defendants pointed out that Plaintiff acknowledged that CDCR followed the departmental 19 policy concerning inmate sexual misconduct. Exhibit C to Abbasciano Decl. ISO MSJ (On a [2] Q: “So what you’re telling me is that this (banning a subject inmate [22] from a classroom) is an option that is available to them, but you really have no idea when they use this option and when they don’t?” [23] Ds’ attorney: “Objection; misstates his testimony.” A: “Correct. Yeah, I don’t have any knowledge of when is has [24] been used.” Q: “Okay.” [25] 3 Inmate was found “guilty to the charge of IEX without prior convictions for PC 314 a Division D [26] offense which is in violation of CCR Section 3007 wherein this act is prohibited” Disciplinary actions include losing a number of privileges for 90 days, losing credits, being prohibited yard [27] access for 10 days, being required to wear an exposure control jumpsuit for 90 days, and having 1 “Employee Report of sexual Misconduct” form dated “02/09/18” and signed by the Plaintiff, 2 answer “Yes” was circled for both the question “Was departmental policy concerning inmate 3 sexual misconduct followed?” and the question “Was Sexual Misconduct Reduction policy 4 discussed with reporting employee?”). 5 III. LEGAL STANDARD 6 A. Motion for Summary Judgment (Rule 56) 7 Federal Rule of Civil Procedure 56 provides that a “court shall grant summary judgment 8 [to a moving party] if the movant shows that there is no genuine dispute as to any material fact and 9 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue of fact is 10 genuine only if there is sufficient evidence for a reasonable jury to find for the nonmoving party. 11 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). “The mere existence of a 12 scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could 13 reasonably find for the [nonmoving party].” Id. at 252 . At the summary judgment stage, evidence 14 must be viewed in the light most favorable to the nonmoving party and all justifiable inferences 15 are to be drawn in the nonmovant’s favor. See id. at 255 .4 16 Where a defendant moves for summary judgment based on a claim for which the plaintiff 17 bears the burden of proof, the defendant need only point to the plaintiff’s failure “to make a 18 showing sufficient to establish the existence of an element essential to [the plaintiff's] case.” 19 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 20 B. Hostile Work Environment 21 To bring a successful Title VII claim under the hostile work environment theory, the 22 employee must establish (1) the existence of a hostile work environment to which the plaintiff was 23 subjected, and (2) that the employer is liable for the harassment that caused the hostile 24 environment to exist. Freitag v. Ayers, 468 F.3d 528, 539 (9th Cir. 2006). A hostile work [25] 4 Evidence may be presented in a form that is not admissible at trial so long as it could ultimately [26] be capable of being put in admissible form. See Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be [27] admissible in evidence”); Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 846 (9th Cir. 1 environment is one where (1) the plaintiff was subjected to verbal or physical conduct of a 2 harassing nature, (2) this conduct was unwelcomed, and (3) the conduct was sufficiently severe or 3 pervasive to alter the conditions of the victim's employment and create an abusive working 4 environment. Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1110 (9th Cir. 2000). “The third 5 element requires us to consider the totality of the circumstances and whether the harassment was 6 both objectively and subjectively abusive.” Freitag, 468 F.3d at 539 . “Courts are to determine 7 whether an environment is sufficiently hostile or abusive by looking at all the circumstances, 8 including the frequency of the discriminatory conduct; its severity; whether it is physically 9 threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes 10 with an employee's work performance. Kortan, 217 F.3d at 1110 (citing Faragher v. City of Boca 11 Raton, 118 S.Ct. 2275, 2283 (1998) (internal citation and quotations marks omitted). 12 Employers are liable for harassing conduct by non-employees “where the employer either 13 ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it 14 knew or should have known of the conduct.” Freitag, 468 F.3d at 538 . “The CDCR is not, by 15 simple virtue of its status as a correctional institution, immune under Title VII from a legal 16 obligation to take such measures and to protect its employees to the extent possible from inmate 17 sexual abuse.” Id. at 539 . 18 IV. DISCUSSION 19 Defendants argue that summary judgment is proper because (1) Plaintiff’s Title VII claim 20 fails on the merits as she cannot prove a hostile work environment or Defendants’ failure to take 21 reasonable action under the circumstances, (2) Plaintiff cannot assert her common law claims 22 because public entities can only be sued for statutory claims, (3) the Workers’ Compensation Act 23 preempts Plaintiff’s state law claims, and (4) Plaintiff’s common law claims fail on the merits 24 because she cannot establish outrageous conduct by Defendants or their bad intent or negligence. 25 See MSJ at 12. Defendants in their reply to Plaintiff’s opposition withdraws their argument that 26 Plaintiff’s Title VII claim is time-barred, but still assert that the state law claims are timed-barred. 27 Reply at 7; Docket No. 45. 1 A. Title VII Claim 2 To show a hostile work environment, Plaintiff must show verbal or physical harassment 3 that was unwelcomed and the severity or pervasiveness of the harassment was sufficient enough to 4 “alter the conditions of [her] employment and create an abusive working environment.” Kortan, [5] 217 F.3d at 1110 . “A single incident of harassment can support a claim of hostile work 6 environment because the frequency of the discriminatory conduct is only one factor in the analysis 7 . . . but for a single incident to suffice, it must be extremely severe.” Fried v. Wynn Las Vegas, 8 LLC, 18 F.4th 643, 648 (9th Cir. 2021) (citing Little v. Windermere Relocation, Inc., 301 F.3d 9 958, 967 (9th Cir. 2002); Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir. 2000)) (internal 10 quotations marks omitted). “Simple teasing, offhand comments, and isolated incidents (unless 11 extremely serious) will not amount to discriminatory changes in the terms and conditions of 12 employment. Faragher, 118 S. Ct. at 2283 (internal citations and quotation marks omitted). 13 “When severity is questionable, “it is more appropriate to leave the assessment to the factfinder 14 than for the court to decide the case on summary judgment.” Fried, 18 F.4th at 648 (citing Davis 15 v. Team Elec. Co., 520 F.3d 1080, 1096 (9th Cir. 2008)). 16 Once the court finds hostile work environment, Defendants’ liability hinges on their 17 responses to the inmate’s conduct—specifically, whether the responses were prompt, reasonable, 18 and effective. See Freitag, 468 F.3d at 539-40 (“With respect to the question of liability for 19 harassment caused by a third party, the employer's corrective measures must be reasonably 20 calculated to end the harassment; the reasonableness of the corrective action will depend on, inter 21 alia, the employer's ability to stop the harassment and the promptness of the response.”) (internal 22 citation omitted). 23 1. Hostile Work Environment 24 The Court first determines whether the inmate’s conduct was sufficiently severe or 25 pervasive. The Ninth Circuit has held that “[i]n evaluating the severity and pervasiveness of 26 sexual harassment, we should focus on the perspective of the victim.” Ellison v. Brady, 924 F.2d 27 872, 878 (9th Cir. 1991) (“[B]ecause women are disproportionately victims of rape and sexual 1 victims of mild forms of sexual harassment may understandably worry whether a harasser's 2 conduct is merely a prelude to violent sexual assault.”). 3 The court must also determine the objective abusiveness of the environment. In making 4 such objective evaluation, the Court can look to the frequency of the encounters and the nature of 5 actions in which the inmate and Plaintiff engaged. See Freitag, 468 F.3d at 539 ; Kortan, 217 F.3d 6 at 1110 ; Brooks, 229 F.3d at 924 (The Ninth Circuit recognized that “the incident pervaded [the 7 plaintiff’s] work environment to such a degree that she required psychological help and even then 8 was unable to successfully return to her job. She has alleged sufficient facts to support the 9 subjective portion of her hostile work environment claim. The question remains whether her 10 apprehension was objectively reasonable.”). 11 In “consider[ing] the totality of the circumstances and whether the harassment was both 12 objectively and subjectively abusive,” it is proper to take into account the prison setting, Plaintiff’s 13 experience and expectation, and the nature of the offensive conducts at issue. See Daniels v. 14 CDCR, No. 2:10-cv-00003-MCE-AC, 2013 U.S. Dist. LEXIS 165897 , at *7 (E.D. Cal. Nov. 20, 15 2013) (“[T]he fact remains that whether or not a sexually charged atmosphere created by inmate 16 behavior is sufficiently severe and pervasive must necessarily be viewed in the context of a prison 17 environment itself . . . what amounts to severe and pervasive misconduct in a correctional setting 18 is wholly different than what would be reasonably expected within the confines of, for example, a 19 law office.”); Slayton v. Ohio Dept. of Youth Servs., 206 F.3d 669, 677 (6th Cir. 2000) 20 (“[p]risoners, by definition, have breached prevailing societal norms in fundamentally corrosive 21 ways. By choosing to work in a prison, corrections personnel have acknowledged and accepted 22 the probability they will face inappropriate and socially deviant behavior.”) (internal citations 23 omitted); Powell v. Morris, 37 F. Supp. 2d 1011, 1017 (S.D. Ohio 1999) (“The propensity of 24 courts to decline imposing liability for prisoner acts is based on solid logical and practical 25 foundations: anyone who works at a prison, particularly in a position with frequent inmate contact, 26 must expect some off-color interactions.”). As the Supreme Court noted: 27 We have emphasized, moreover, that the objective severity of circumstances.” In same-sex (as in all) harassment cases, that 1 inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A 2 professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the 3 buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach's secretary 4 (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding 5 circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical 6 acts performed. 7 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 , 81–82 (1998) (emphasis added) (internal 8 citation omitted). 9 Defendants note that Plaintiff has been a trained nurse with over 14 years of experience 10 working in the prison, an extremely stressful environment. See MSJ at 14. Defendants therefore 11 argue that a person with Plaintiff’s experience and similar expectations would not have reasonably 12 considered her work environment hostile or abusive based on only one reported IEX incident in 13 over a decade. See MSJ at 14. 14 Regarding the issue that the inmate told Plaintiff he was in prison for murdering an Asian 15 woman, Defendants note that this allegation has no connection to Plaintiff’s alleged emotional 16 distress because, in her deposition, Plaintiff acknowledged that she never had any safety concerns 17 regarding the inmate prior to the IEX incident. Reply at 8; Plaintiff’s Deposition, at 34:23-35:1. 18 Defendants also argue that one single reported incident of IEX cannot be deemed 19 sufficiently severe or pervasive when considering the “frequency” of the conduct, the level of 20 physical threat, and its interference with Plaintiff’s work performance. See Kortan, 217 F.3d at 21 1110; McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113-15 (9th Cir. 2004); see also Faragher, 22 118 S. Ct. at 2283 (Simple teasing, offhand comments, and isolated incidents (unless extremely 23 serious) will not amount to discriminatory changes in the terms and conditions of employment.) 24 (internal citations and quotation marks omitted). 25 Plaintiff agrees that the factors listed in Kortan and McGinest provide a useful guide for 26 evaluating a work environment’s objective hostility, but contends that there have been at least 27 three more incidents, including the inmate’s “stalking outside Plaintiff’s classroom and his 1 “immense fear for her safety and well-being, which have further manifested in the form of 2 physical symptoms such as hand tremors, palpitations, and severe trauma.” Opp’n at 5–6; Luna 3 Decl. at ¶ 10. Such “constant encounters” have caused her subsequent physical and emotional 4 harm and given rise to her intentional efforts to steer clear of the offending inmate. Opp’n at 6; 5 Physician’s Notes. 6 In Freitag, a female correctional officer brought suit under Title VII against CDCR, 7 alleging hostile work environment. See 468 F.3d at 532 . She encountered pervasive exhibitionist 8 behavior by a male inmate over a period of several months. In affirming a jury’s finding of hostile 9 work environment, the Ninth Circuit found sufficient evidence that the plaintiff was “repeatedly 10 exposed to conduct of a sexual nature.” Id. at 540 . Specifically, “constant barrage of sexual abuse 11 that, according to the testimony at trial, was allowed to continue virtually unfettered for the 12 duration of Freitag's employment at the prison.” See id.; see also Gales v. California California 13 Dep't of Corr. & Rehab. Ventura Youth Corr. Facility, No. CV 19-5025-GW-AGRX, 2021 WL 14 342571, at *22 (C.D. Cal. Jan. 28, 2021) (The defendant argued that one racist incident (display of 15 a noose) did not change the terms and conditions of the plaintiff's employment because any change 16 in this regard can also be attributed to the plaintiff’s own decision to take leave. The court noted 17 that this was a “one-sided view of the evidence, and also not fairly-reflective of the hostile work 18 environment-based theory recognized in Harris. (citing Harris v. Forklift Systems, Inc., 114 S.Ct. 19 367, 370 (1993) (“A discriminatorily abusive work environment, even one that does not seriously 20 affect employees' psychological well-being, can and often will detract from employees' job 21 performance, discourage employees from remaining on the job, or keep them from advancing in 22 their careers.”)). 23 Here, Plaintiff’s encounters with the offending inmate, even viewed in the light most 24 favorable to her, are distinguishable from the facts in Freitag. As to the single IEX incident, that 25 alone would not constitute sufficient sexual harassment by itself to create a hostile work 26 environment. In Brooks, the Ninth Circuit found that a single incident of physical assault where 27 the defendant improperly touched plaintiff's stomach and breast was insufficient to support a 1 Greenpeace, Inc., 873 F.Supp. 1105, 1111 (N.D.Ill.1994), where a single incident was found 2 sufficient to survive a motion to dismiss because the assailant “slapped [the plaintiff], tore off her 3 shirt, beat her, hit her on the head with a radio, choked her with a phone cord and ultimately forced 4 her to have sex with him.” See Brooks, 229 F.3d at 926 . Powell v. Morris is instructional given 5 the context of the work environment in the instant case – Plaintiff works at CMF which houses 6 and treats inmates with mental health issues. The plaintiff in Powell, a correctional employee, 7 brought Title VII hostile work environment claim against her employer for sexually offensive 8 conducts of inmates. See 37 F. Supp. 2d at 1016-18 . The court found only one incident of alleged 9 “sexual assault,” which led to disciplinary actions against the offending inmate. Id. The court was 10 not convinced by the plaintiff’s assertion that sex offenders were allowed to “roam unguarded and 11 unsupervised” because her own testimony suggested that a guard was always stationed outside her 12 office and inmates working in her area had to go through a rigorous selection process. See id. at 13 1018. As for another incident where another inmate unzipped his pants and made motions of 14 masturbation when the plaintiff was walking down a hallway (plaintiff ran away, filed an incident 15 report, but did not follow up on it), the court found it “a one-time incident, and ‘isolated incidents 16 (unless extremely serious) will not amount to discriminatory changes in the terms and conditions 17 of employment.’” Id. (citing Faragher, 118 S. Ct. at 2283 ). The court granted the defendant’s 18 motion for summary judgment with respect to prisoner harassment, noting that “[a]s a single 19 incident of prisoner lewdness, which Plaintiff should have expected or at least contemplated as 20 part and parcel of a prison environment, this episode hardly rises to the level of a pervasively 21 hostile environment.” Powell, 37 F. Supp. 2d at 1018 . 22 Plaintiff has not made a convincing showing how the subsequent encounters in October 23 and November created a hostile work environment. While Plaintiff did raise safety concerns with 24 Defendants regarding the three subsequent encounters, none of them warranted guard intervention 25 or disciplinary actions, and only one incident involved exchange of words.5 None of the [26] 5 The other incident ended with Plaintiff ordering the inmate to leave her classroom: [27] 1 encounters in themselves were sexual or violent in nature. Although Plaintiff may have felt 2 threatened, that threat was predicated on the IEX incident which did not come close to creating a 3 hostile work environment. As such, viewing the single IEX incident in conjunction with the 4 subsequent non-physical encounters, the inmate’s overall conduct does not display a level of 5 (physical) seriousness and potential harm that warrants a reasonable finding of “continuing 6 abuses” or “multiple occasions of harassment.” See, e.g., Freitag, 468 F.3d at 540 ; Meritor Sav. 7 Bank, FSB v. Vinson, 477 U.S. 57 , 60–61 (1986) (finding hostile work environment where the 8 employee had been subject to unwelcomed sexual advances on multiple occasions and out of fear 9 of losing her job). 10 The Ninth Circuit in Ellison, adopting the perspective of a reasonable victim, found hostile 11 work environment where the course of abusive conduct directed at the plaintiff took place in an 12 office setting and intensified over time. See 924 F.2d at 873-75 . The employer in Ellison not only 13 failed to timely halt the harasser’s unwanted sexual advances, but also reassigned the harasser 14 back to work with the plaintiff after a cooling-off period. See id. Defendants here, without 15 obvious delay, disciplined the offending inmate, referred him for prosecution, and removed him 16 from Plaintiff’s group classes. The inmate’s sexual misconduct, rather than having escalated, 17 occurred only once. In addition, Plaintiff works at a state prison medical facility where one could 18 have reasonably expected to interact with inmates with mental health conditions and encounter 19 some dysfunctional behaviors. See Freitag, 468 F.3d at 540 (“Although it certainly would have 20 been reasonable for Freitag to anticipate substantial inmate misbehavior, given the severity of the 21 crimes committed by those incarcerated at Pelican Bay . . . she also had reason to expect that [22] back.” “But I—I was able to step back a little bit, so that—maybe [23] like 7 feet away.” “And then he said that he wants to be in the nursing group long time, and he enjoyed my group.” “And then I [24] told him—I was able to say, ‘Step out of the—my room right now,’ in a respectful way. And that's how I had to do it because we don't [25] want him to snap.” “So I asked him that. And he did not, he did not go out; he did not follow my order. And he said—I—I just don't [26] remember. He said something else. But I said it for the second time, said something else. But I said it for the second time, ‘step out of my [27] room now.’ And finally he followed.” 1 prison officials would seek in good faith to control the most extreme forms of sexual 2 misconduct.”) (internal citation omitted). As such, considering the totality of the circumstances, 3 the context of prison environment and Plaintiff’s job duties, there appears to be no reasonable 4 ground to characterize what she experienced as “constant barrage of sexual abuse” or repeated 5 exposure to sexual conduct. 6 In any event, the Court need not decide the question whether Plaintiff has made a sufficient 7 showing of a hostile work environment to survive summary judgment. Plaintiff has failed to offer 8 sufficient evidence to show Defendants’ responses to her sexual harassment complaints were 9 unreasonable or inappropriate and thus has not established a basis for Defendants’ liability. 10 2. Defendants’ Response and Liability 11 An employer can be liable for sexual harassment caused by a third party, as in this case, if 12 the employer “ratifies or acquiesces in the harassment by not taking immediate and/or corrective 13 actions when it knew or should have known of the conduct.” Freitag, 468 F.3d at 538 . However, 14 it may avoid liability by undertaking remedial measures reasonably calculated to end the 15 harassment. Dawson v. Entek Int'l, 630 F.3d 928, 940-41 (9th Cir. 2011) (citations and quotation 16 marks omitted). “The reasonableness of the remedy depends on its ability to: (1) ‘stop harassment 17 by the person who engaged in harassment;’ and (2) ‘persuade potential harassers to refrain from 18 unlawful conduct.’” Dawson, 630 F.3d at 940 -41 (quoting Nichols v. Azteca Rest. Enter., Inc., [19] 256 F.3d 864 , 875 (9th Cir.2001). “To be adequate, an employer must intervene promptly.” 20 Dawson, 630 F.3d at 940-41 (internal citation omitted). Remedial measures may include some 21 form of disciplinary action proportionate to the seriousness of the offense; Title VII requires more 22 than a mere request to refrain from discriminatory conduct. Id. (internal citations omitted). 23 Defendants argue that because they responded to the IEX incident and Plaintiff’s safety 24 concerns promptly, reasonably, and in accordance with applicable rules, they cannot be found 25 liable for the actions by the offending inmate. See MSJ at 17-18. Defendants’ response included: 26 (1) after Plaintiff reported the IEX incident, the inmate was set for a disciplinary hearing on March 27 12, 2018. (2) A Senior Hearing Officer found the Inmate Patient “guilty to the charge of IEX 1 3007 wherein this act is prohibited.” (3) The inmate was disciplined by losing a number of 2 privileges for 90 days, credits, being prohibited yard access for 10 days, and being required to 3 wear an exposure control jumpsuit for 90 days. (4) Placards were placed in his cell windows 4 limiting the Inmate Patient’s view of staff for 90 days. (5) The case was referred to the Solano 5 County District Attorney for criminal prosecution. (6) The inmate was permanently banned from 6 attending Plaintiff’s classes. MSJ at 19; Exhibit D to Abbasciano Decl. ISO MSJ. 7 With respect to applicable rules and protocols, Defendants contend that Plaintiff 8 acknowledged CDCR’s compliance with departmental policies concerning inmate sexual 9 misconduct. She signed an “Employee Report of sexual Misconduct” form and answering “Yes” 10 to the question “Was departmental policy concerning inmate sexual misconduct followed?” 11 Exhibit D to Abbasciano Decl. ISO MSJ. 12 Defendants further argue that the effectiveness of their response was evidenced by the fact 13 that Plaintiff did not report any subsequent IEX incidents concerning the inmate or any other 14 inmates. MSJ at 19. Defendants contend that the subsequent encounters were simply unavoidable 15 because both Plaintiff and the inmate needed to access the same “O-2” building (and the same 16 hallway) for group classes and for medical appointments, and that they cannot be reasonably 17 expected to punish the inmate for simply looking at Plaintiff or for walking down the same 18 hallway. Reply at 9-10. Overall, Defendants argue that because Plaintiff understood the nature of 19 working at CMF around inmates with mental health issues, and there has been no encounter since 20 the IEX incident that required intervention or discipline, Defendant’s response was sufficient to 21 preclude its liability under Title VII. Reply at 10-11. 22 Plaintiff generally argues that “Defendants’ inaction, disinterest, and flagrant disregard for 23 the safety of Plaintiff exhibits an unequivocal ratification or acquiescence in the harassment she 24 faced.” See Opp’n at 8. While Plaintiff’s briefs suggest she had several requests and 25 expectations6 relating to her experience, one particular need—that she wishes to be segregated [26] 6 (1) disciplinary actions and prosecution; (2) zero exposure to the offending inmate and [27] alternative work opportunities; (3) other actions pursuant to CDCR/CMF’s policies; (4) handling 1 from the offending inmate at all times—appears most important to her. Plaintiff argues that “no 2 evidence” shows Defendants “took any action whatsoever in response to Plaintiff’s request for 3 accommodation,” and this is not reasonable “given the continuing abuse suffered by Plaintiff each 4 time she encountered the offending inmate.” Opp’n at 2. 5 Specifically, Plaintiff asserts several times in her opposition that the inmate was not 6 banned from (entering) Plaintiff’s classrooms. See Opp’n at 2, 7, 8. But she does not dispute that 7 the inmate was permanently banned from attending her classes.7 8 Evidence shows that soon after the IEX incident, the offending inmate was segregated, 9 disciplined, prosecuted, and banned from Plaintiff’s group classes. Plaintiff’s Deposition at 31:1010 16;8 38:13-17.9 The remaining inquiry is whether Defendants should have reasonably 11 accommodated Plaintiff’s additional requests, including ensuring zero contact with the offending 12 inmate.10 13 Regarding accommodation of preventing any incidental contact with the inmate, Plaintiff 14 argues that even it is physically impossible for the offending inmate to receive his treatment at [15] 7 Defendants contend that “it is undisputed that CDCR permanently banned the Inmate Patient [16] from attending Plaintiff’s group classes, and Plaintiff herself admitted this fact in her deposition.” Reply at 7; Plaintiff’s Deposition at 31:10-16; 38:13-17; 44:24-45:6. [18] Q. Prior to that day, February 9th, 2018, how long had you had Inmate Clifton in your class? [19] A. As soon as that indecent exposure with masturbation happened, he was removed from my class. [21] Q. After that February 9, 2018, was Inmate Clifton removed from [22] your group classes, or was he still a group member in your classes? A. No. He was immediately removed from my class after that February 9th incident. [23] 10 There appears to be some inconsistency regarding Plaintiff’s assertion that Defendants failed to [24] offer her safer alternative work opportunities. Plaintiff indicated that she was “open to accepting any other job in order to preclude any further encounters with the offending inmate” and “there are [25] no documents whatsoever showing any offers to Plaintiff to work in different local facilities and her denial of such offers.” Opp’n at 7-8 (citing Luna Decl. at ¶13). But Plaintiff states in her [26] deposition that this is the only position that works for her schedule and is convenient for her to attend to family needs. Plaintiff’s Deposition at 24:16-19; 79:20-80: 1. Defendant’s [27] representatives also stated during deposition that offers were made, at least verbally, to Plaintiff to 1 CMF while avoiding crossing paths with Plaintiff, it is possible to use walkie-talkies and inform 2 Plaintiff when the offending inmate is in the hallway. Opp’n at 7. Plaintiff notes that the inmate 3 could have also been transferred to a different facility, although she concedes this would be 4 “contingent on factors such as the inmate’s enemy situation, classification score, among others.” 5 Opp’n at 7-8. But as Defendants contend, Plaintiff’s suggestion that she be informed of the 6 inmate’s whereabouts is unreasonable because “Defendants cannot reasonably be expected to 7 implement procedures in response that disrupt the entire facility’s operations and inmates’ medical 8 treatment.” Reply at 12. With respect to permanent restrictions on the offending inmate’s 9 movements, Defendants argue that it is “not viable because it would be an unlawful deprivation of 10 liberty without due process.” Reply at 12. In addition, Defendants note that the inmate cannot be 11 banned from accessing the O-2 building to receive medical treatment because CDCR has a duty to 12 protect inmates’ right to adequate medical care under the Eighth Amendment and relevant case 13 law. Reply at 12 (citing Coleman v. Wilson, 912 F.Supp. 1282 (E.D. Cal. 1995); Coleman v. 14 Schwarzenegger, 922 F.Supp.2d 882, 898, 899 (E.D. Cal. 2009)). 15 Plaintiff also argues that the unreasonableness of Defendants’ response is evident from the 16 fact that “no documents whatsoever showing any offers to Plaintiff to work in different local 17 facilities and her denial of such offers,” even though she was “open to accepting any other job in 18 order to preclude any further encounters with the inmate.” Opp’n at 8; Luna Decl. at ¶ 13. In 19 response, Defendants point out that Plaintiff’s assertion of this failure to accommodate should be 20 disregarded because it was not raised in the complaint and not at issue in this case. Reply at 11. 21 On the specific requests, Defendants contend that Plaintiff never asked for a transfer, declined 22 offers to work in a different building or facility,11 and bid again for the same position at CMF in [24] “Offers were made to Ms. Luna to—to transfer to the mental health crisis bed area, which is a freestanding building that is not within the [25] main corridor of CMF, which would have drastically decreased the chance of Ms. Luna coming across the patient, and that was [26] declined. And I believe that another request was made to consider Ms. Luna moving to the institution that is right next door, which is [27] CSP Solano, which would have 100 percent guaranteed that Ms. 1 October 2021. See Reply at 7. 2 Even if viewing the evidence in Plaintiff’s favor, Plaintiff fails to show Defendants’ 3 responses were unreasonable. Remedial measures do not fail to be “reasonably calculated to 4 minimize such harassment and protect the safety of its employees” simply because they fall short 5 of victim’s expectations. Freitag, 468 F.3d at 541 . Here, Plaintiff conceded that Defendants 6 followed existing policies or protocols during their handling of her IEX incident and the 7 subsequent encounters.12 Compare id. at 541 (The court found that the defendants failed to 8 sufficiently invoke their own prescribed measures—“the correctional staff controls inmates 9 primarily by the inmate disciplinary process, physical restraints, revocation of privileges, and 10 referral for criminal prosecution.”). Neither has Plaintiff offered evidence showing Defendants’ 11 handling of the IEX incident was delayed, reluctant, or ineffective in preventing future IEX 12 incidents, or that her subsequent encounters with the inmate amounted to harassment or 13 misconduct that required intervention or disciplinary actions. As for the suggestion that 14 Defendants’ staff could use walkie-talkies to warn Plaintiff every time the inmate is in her vicinity, 15 considering the number of inmates accessing the building each day and the practical difficulties in 16 implementing such an early warning system, the Court does not find it unreasonable for 17 Defendants to deny this accommodation. 18 As such, Plaintiff has not presented evidence enough to allow a reasonable jury to 19 conclude that Defendants’ response is so insufficient as to “ratify or acquiesce in the harassment.” 20 Freitag, 468 F.3d at 538 . The Court accordingly GRANTS Defendants summary judgment on the 21 Title VII claim. [23] See also Exhibit 2 to Abbasciano Decl. ISO Reply at 21:14-23:9 [24] (testimony by Defendants’ witness suggesting there were conversations between Defendants and Plaintiff regarding the [25] possibility of transferring to another facility). [26] 12 As for the CDC form 128-B Plaintiff filed relating to the subsequent encounters, Plaintiff complains that nothing indicates Defendants reviewed it or took actions accordingly. However, it [27] appears that Plaintiff has not put forward any evidence or suggesting Defendants have a duty to 1 B. State-Law Claim 2 Defendants argue that Plaintiff’s state law claims fail as a matter of law because (1) public 3 entities can only be sued for statutory claims and (2) the Workers’ Compensation Act preempts 4 state law claims. See MSJ 20-21. Defendants also argue that the state law claims fail on the 5 merits. See MSJ at 22-24. 6 The Government Claims Act (Tort Claims Act) (§ 810 et seq.) states: “Except as 7 otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such 8 injury arises out of an act or omission of the public entity or a public employee or any other 9 person.” Cal. Gov. Code, § 815, subd. (a). “This section abolishes all common law or judicially 10 declared forms of liability for public entities, except for such liability as may be required by the 11 state or federal constitution, e.g., inverse condemnation . . . [T]he practical effect of this section is 12 to eliminate any common law governmental liability for damages arising out of torts.” § 815 Leg. 13 Comm. Comments. The California Government Code § 815 provides: 14 Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or 15 omission of the public entity or a public employee or any other person. (b) The liability of a public entity established by this part 16 (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject 17 to any defenses that would be available to the public entity if it were a private person. [18] 19 Cal. Gov. Code, § 815. Although Plaintiff has not identified a specific statutory basis for 20 correctional officers to bring tort claims against prisons (cf. Government Code § 844.6 which 21 allows prisoners to sue prison/parole officials for money damages for their wrongful 22 act/negligence/failure to act), she cannot prevail here because any such claim is preempted. 23 “California's Workers’ Compensation Act provides an employee's exclusive remedy 24 against his or her employer for injuries arising out of and in the course of employment.” Wright v. 25 State, 233 Cal.App.4th 1218, 1229 (2015). See Cal Labor Code § 3602 (“(a) Where the conditions 26 of compensation set forth in Section 3600 concur, the right to recover compensation is, except as 27 specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy 1 preempts claims based on physical or emotional injuries, including claims for intentional infliction 2 of emotional distress, arising out of and in the course of employment. See Yau v. Santa Margarita 3 Ford, Inc., 229 Cal.App.4th 144, 161 (2014); Erhart v. BofI Holding, Inc., 269 F.Supp.3d 1059 , 4 1080–1081 (S.D. Cal. 2017) (“Under California law, workers’ compensation provides the 5 exclusive remedy for an intentional infliction of emotional distress claim that is based solely on 6 alleged personnel activity.”). The Court agrees with Defendants that because Plaintiff’s claims 7 “arise from the inherent occupational hazard of caring for mentally ill inmates,” her harassment 8 claims based on negligence should be preempted by the Workers’ Compensation Act. See MSJ at 9 21 (citing Gregory v. Cott, 59 Cal.4th 996 (2014) (The California Supreme Court denied a nurse 10 assistant’s claims based on an assault by an Alzheimer patient. Because the plaintiff “placed 11 herself in a position where she assumed the duty to take care of [Alzheimer] patients who were 12 potentially violent and to protect such patients from committing acts which might injure others.” 13 The court stated that “[a]fter weighing the public policies involved, we agree with those sister14 state jurisdictions which have concluded that workers’ compensation, rather than tort recovery, is 15 the appropriate means of compensating hired caregivers for injuries caused by Alzheimer’s 16 patients.”)). 17 As such, the Court GRANTS Defendants’ motion for summary judgment on Plaintiff’s 18 state law claims. 19 C. Statutes of Limitations 20 Defendants raised and later withdrew their argument that Plaintiff’s Title VII claim is time21 barred. Reply at 7. Defendants still contend that Plaintiff’s state law claims are time-barred 22 because they are subject to a two-year statute of limitations and claims that occurred prior to 23 November 12, 2018 are barred (Plaintiff filed this suit on November 12, 2020). The only 24 encounter that occurred after November 12, 2018 was the inmate entering Plaintiff’s classroom 25 asking if he could attend her classes. See Cal. Code Civ. Pro. § 335.1 (The time of commencing 26 actions other than for the recovery of real property [is] [w]ithin two years: An action for assault, 27 battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of 1 Notably, Plaintiff does not respond to Defendants’ argument regarding the state law 2 claims’ timeliness, and thus dismissal of the state claims is warranted. In any event, the Court also 3 finds that the claims are preempted, and summary judgment is thus proper. 4 V. CONCLUSION 5 Based on the foregoing, Defendants’ motion for summary judgment is GRANTED on the 6 hostile work environment claim because the Court finds no genuine dispute of material fact that 7 Defendants’ remedial measures were sufficient or reasonable, and GRANTED on the state law 8 claims because they are barred by the Tort Claims Act, the Workers’ Compensation Act, and the 9 statute of limitations. 10 This order disposes of Docket No. 30. The Clerk is instructed to enter Judgment and close 11 the case. [12] 13 IT IS SO ORDERED. [14] 15 Dated: April 28, 2022 [16] 17 ______________________________________ EDWARD M. CHEN 18 United States District Judge