Metropolitan News-Enterprise


Tuesday, August 7, 2018


Page 1


Court of Appeal:

Former Employee May Amend Complaint Based on Facts Raised on Appeal


By a MetNews Staff Writer


An ex-corrections officer whose discrimination complaint against the California Department of Corrections and Rehabilitation was dismissed must be granted leave to amend based on facts she raised on appeal, the Third District Court of Appeal said yesterday.

The operative complaint in the case, brought by former California Department of Corrections and Rehabilitation (“CDCR”) employee Edna Miller, alleging a demotion and termination in violation of the Fair Employment and Housing Act (“FEHA”), made no mention filing the requisite complaint with the Department of Fair Employment and Housing (“DFEH”) within a year of the adverse employment actions.

Based on that deficiency, the CDCR moved for judgment on the pleadings which Sacramento Superior Court Judge David I. Brown granted, without leave to amend.

In the opinion reversing the judgment, Justice Louis Mauro said that the September 2012 action might be timely, and Miller must be given an opportunity to replead.

Miller’s Opinion

 He wrote:

“Here, Miller asserts on appeal that, on March 26, 2012, she filed a DFEH complaint alleging that CDCR denied her accommodations and equal pay, retaliated against her, and failed to reinstate her. She also asserts that, on March 28, 2012, the DFEH issued a right-to-sue letter. If she filed that DFEH complaint in March 2012, then it was within one year of her alleged medical demotion (June 13, 2011) and termination (August 31, 2011) and was therefore timely filed….”

He continued:

“Miller brings the March 26, 2012 DFEH complaint to this court’s attention by mentioning it in her appellant’s opening brief and attaching an unauthenticated copy of the DFEH complaint and the resulting right-to-sue letter to the brief. While this is not a proper way to establish a fact on appeal…, the plaintiff need only propose sufficient facts on appeal to obtain reversal after a motion for judgment on the pleadings is granted without leave to amend….Attaching what appears to be a DFEH complaint to the opening brief was sufficient to propose the fact that Miller filed such a complaint within one year after the demotion and termination.”

The case is Miller v. Department of Corrections and Rehabilitation, C079853.

Supreme Court Precedent

Miller’s earlier case against the CDCR resulted in a 2005 California Supreme Court unanimous decision which established the right of an employee to claim a hostile work environment based on a supervisor’s pervasive favoritism toward employees with whom he is having affairs.

In that case, Miller v. Department of Corrections, 36 Cal. 4th 446, Miller alleged among other things that Lewis Kuykendall—who at the time of the alleged harassment in the 1990s was warden of the Valley State Prison for Women in Chowchilla—was carrying on sexual relationships with several of his female subordinates. Those subordinates were given special benefits, including in one case a promotion for which Miller had applied and was better qualified.

Then-Chief Justice Ronald M. George (since retired) wrote:

“[W]e conclude that, although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed by management as ‘sexual playthings’ or that the way required for women to get ahead in the workplace is by engaging in sexual conduct with their supervisors or the management.”


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