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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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, 

 Plaintiff and Appellant, 

v. 

J. POL, et al., 

 Defendants and Respondents. 

2d Civil No. B244901 

(Super. Ct. No. CV120146A) 

(San Luis Obispo County) 

 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.) 
2. 

 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 
3. 

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 
4. 

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.) 
5. 

 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 
6. 

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. 
7. 

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.