Filed 1/22/14 Knox v. Pol CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


JESUS KNOX,                                                                  2d Civil No. B244901
                                                                         (Super. Ct. No. CV120146A)
     Plaintiff and Appellant,                                              (San Luis Obispo County)

v.

J. POL, et al.,

     Defendants and Respondents.



                   Jesus Knox, a state prison inmate, sued three members of the prison staff
for violating prison administrative regulations and for discriminating against him on the
basis of sex, race and mental disability in violation of the Fair Employment and Housing
Act (FEHA). (Gov. Code, § 12940 et seq.) He appeals from the trial court's order
sustaining respondents' demurrer without leave to amend.1 We affirm.
                                                          Facts
                   Appellant, an African-American state prison inmate who states that he is
mentally ill, worked as a cook in the prison kitchen. Respondent Pol is a Caucasian staff
cook in the kitchen. Respondent Watains is also employed as a staff cook in the kitchen.
Respondent Pechmann is their manager.


1
 Although no final judgment was entered in the court below, we construe the order
sustaining the demurrer without leave to amend as an appealable order of dismissal.
(Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.)
              Appellant's complaint alleges that, in December 2010, he was working in
the kitchen, stirring pudding with a large dipper, when Pol walked up to him, gestured as
if he was masturbating and said, "How does that feel?" A few days later, Watains told
appellant that he had heard about the incident. In January 2011, Pol reported to a
corrections officer that appellant felt suicidal. Appellant denied the report and alleges it
was false. In February 2011, Pol yelled at appellant for filling rice pans incorrectly and
then issued a written warning to him. Appellant complained he was being picked on
because of his race. Respondent Pechmann investigated the complaint about one month
later and found no misconduct by staff. Staff did, however, receive additional training.
In March 2011, appellant was not allowed to work for one day because he showed up for
work with two black eyes. In June 2011, Pol and a corrections officer engaged in some
horseplay for about an hour, hiding from appellant a job classification review form that
appellant needed to have signed. They eventually gave the form back to appellant who
had it signed by another officer. The incident caused appellant to have an anxiety attack.
Later that same month Pechmann approved Knox's request for a job transfer from the
kitchen to the bakery. As he was leaving the kitchen, appellant heard Pechmann yell, "I
better not hear anything else from you! Are we clear?"
              Appellant filed two separate, internal prison grievances against Pol, one
relating to the pudding incident and another concerning the rice pans. He exhausted his
administrative remedies with regard to the first grievance. Neither grievance mentioned
Watains or Pechmann. In his response to respondents' demurrer, appellant claimed he did
not file a grievance against Pechmann because he felt threatened and intimidated by
Pechmann's statement, "I better not hear anything else from you!"
              In May 2011, appellant filed a tort claim with the Victim Compensation
and Government Claims Board. The claim did not mention Pechmann or allege that
appellant had been injured by anyone working in Pechmann's position.
                                        Contentions
              Respondents' demurrer contended: 1. appellant cannot state a claim for
violation of FEHA because he is an inmate, not a employee; 2. appellant had no private


                                              2.
right of action under the prison administrative regulations; 3. appellant did not exhaust
his administrative remedies or comply with the Tort Claims Act; 4. appellant's FEHA
claims fail on their merits. The trial court concluded appellant had sufficiently complied
with the Tort Claims Act but failed to exhaust his administrative remedies with regard to
Pechmann and Watains. It further concluded appellant had no private right of action for
violation of the administrative regulations. Appellant's FEHA claims failed to state a
cause of action because appellant alleged no facts supporting the conclusion that he was
discriminated against on the basis of a protected characteristic or activity. Appellant now
contends each of these rulings was erroneous.
                                    Standard of Review
              We review de novo the order sustaining respondents' demurrer. (Beets v.
County of Los Angeles (2011) 200 Cal.App.4th 916, 922.) Like the trial court, we accept
as true all properly pleaded, material factual allegations in the complaint and other
relevant matters that are properly the subject of judicial notice. We liberally construe the
factual allegations to determine whether they state a cause of action. (Id.) Where, as
here, the trial court has sustained the demurrer without leave to amend, we must decide
whether there is a reasonable possibility appellant could cure the defects by amending the
complaint. It is appellant's burden to demonstrate how an amendment could cure any
such defects. (Schifando v. City of Los Angeles (2030) 31 Cal.4th 1074, 1081; Rakestraw
v. Cal. Physicians' Serv. (2000) 81 Cal.App.4th 39, 44.)
                                         Discussion
                                       FEHA Claims
              Appellant's first, second, third, fourth, eighth, ninth, tenth, twelfth and
thirteenth causes of action attempt to allege claims for violation of the FEHA.
Respondents urge us to hold appellant cannot state a cause of action under FEHA as a
matter of law because he is a state prison inmate on a work assignment, not an employee
of the Department of Corrections. We need not decide this issue of first impression in
California, however, because appellant's complaint fails for another reason. It does not



                                              3.
allege that he suffered any adverse employment action and does not, therefore, allege a
cause of action under FEHA.
              FEHA prohibits discrimination "in terms, conditions or privileges of
employment." (§ 12940, subd. (a).) This prohibition is often referred to as the
requirement "that the discriminatory action result in 'adverse employment action.'
(Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, [1042] . . . .)" (Horsford v.
Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373.) To
be actionable, the change in employment terms or conditions must be substantial and
detrimental to the employee. (Id.) "Minor or relatively trivial adverse actions or conduct
by employers or fellow employees that, from an objective perspective, are reasonably
likely to do no more than anger or upset an employee cannot properly be viewed as
materially affecting the terms, conditions, or privileges of employment and are not
actionable, but adverse treatment that is reasonably likely to impair a reasonable
employee's job performance or prospects for advancement or promotion falls within the
reach" of FEHA's antidiscrimination provisions. (Yanowitz v. L'Oreal USA, Inc., supra,
36 Cal.4th at p. 1054.)
              Appellant alleges that Pol made one inappropriate gesture toward him, sent
him home from work early once because of black eyes, yelled at him for filling rice pans
incorrectly and hid a form from him. He further alleges that, after these incidents took
place, respondent Pechmann approved appellant's request to be transferred to the bakery.
There is no allegation that appellant lost money or work hours, was subject to
disciplinary action, or was transferred to a less desirable work assignment as a result of
Pol's behavior. Nor has appellant alleged that his prospects for future job assignments
have been negatively impacted by these isolated incidents. The incidents described by
appellant do not rise to the level of adverse employment actions because they are not
sufficiently substantial or detrimental to him. Appellant's allegation that he was retaliated
against for reporting staff misconduct fails for the same reason: he does not allege that
the retaliation resulted in an adverse employment action being taken against him. (Id. at
pp. 1050-1052.)


                                             4.
              In addition, an adverse employment action does not violate FEHA unless
discrimination or disparate treatment based on a protected classification was a substantial
factor in the adverse action. (Horsford, supra, 132 Cal.App.4th at p. 375.) The plaintiff
must allege facts which, if proven, would support the conclusion that "the challenged
employment actions were motivated in substantial part by reasons of race [or another
relevant characteristic]." (Id.) Appellant alleges no such facts. There is no allegation
that respondents used racially derogatory language, expressed discriminatory opinions or
otherwise behaved in a racially hostile manner.
              Similarly, appellant has alleged no facts supporting his allegation that
respondents discriminated against him based on his mental illness or disability. The only
allegation related to this claim is that Pol told a member of the custody staff that appellant
seemed suicidal, which appellant denied. There is no allegation the report was motivated
by discriminatory intent or that appellant suffered as a consequence of it. Again, this
isolated incident does not constitute an adverse employment action and cannot, therefore,
form the basis for a cause of action under FEHA.
              Finally, appellant alleges the comment Pol made while appellant was
stirring pudding constitutes sexual harassment. Although a sexual harassment claim may
be based on a single incident, the incident "must be severe in the extreme and generally
must include either physical violence or the threat thereof." (Herberg v. Cal. Institute of
Arts (2002) 101 Cal.App.4th 142, 151.) Appellant does not allege that Pol was physically
violent toward him or that Pol threatened physical violence. The gesture he alleges,
while crude, is not sufficient by itself to constitute sexual harassment.
                          Violation of Administrative Regulations
              Appellant 's first, second, fourth, fifth, sixth and seventh causes of action
allege that respondents violated various administrative regulations relating to state
prisons. There is, however, no private right of action to enforce these regulations. "Only
the Legislature, through enactment of a statute, can create a private right of action to
directly enforce an administrate regulation . . . ." (Thurman v. Bayshore Transit
Management Inc. (2012) 203 Cal.App.4th 1112, 1132.) No such statute exists with


                                              5.
respect to prison regulations. As a matter of law, appellant's allegations that prison staff
violated administrative regulations do not state a cause of action. (See, e.g., In re
Johnson (2009) 176 Cal.App.4th 209, 297 ["Generally, prison discipline falls within the
expected parameters of the sentence imposed by a court of law and does not implicate the
due process clause or create the right to judicial review."].)
                                         Conclusion
              The trial court correctly concluded that appellant's complaint failed to
allege facts sufficient to state a cause of action, either for violation of FEHA or for
violation of administrative regulations. Appellant has not demonstrated the complaint
could be amended to cure those defects. Consequently, we conclude the trial court
correctly sustained respondents' demurrer without leave to amend.
              The judgment (order of dismissal) is affirmed.
              NOT TO BE PUBLISHED.



                                                          YEGAN, J.


We concur:


              GILBERT, P.J.


              PERREN, J.




                                              6.
                                 Dodie Harman, Judge

                       Superior Court County of San Luis Obispo

                          ______________________________


             Jesus Knox, in pro per, Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Thoma
Patterson, Supervising Deputy Attorney General, Neah Huynh, Deputy Attorney General,
for Plaintiff and Respondent.




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