Filed 1/22/14 Knox v. Pol CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 regulatio ns 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 pr ison 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. Responde nt Watains is also employed as a staff cook in the kitchen. Respondent Pechmann is their manager.

1 Although no final judgment wa s 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 walk ed up to him, gestured as if he was masturbating and said, "How does th at feel?" A few days later, Watains told appellant that he had heard about the inci dent. 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 f illing rice pans incorrectly and then issued a written warning to him. Appellant complain ed he was being picked on because of his race. Respo ndent 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 ey es. In June 2011, Pol and a corre ctions officer engaged in some horseplay for about an hour, hiding from appe llant a job classification review form that appellant needed to have signed. They even tually gave the form back to appellant who had it signed by another officer. The incident ca used appellant to have an anxiety attack. Later that same month Pechmann approved Kn ox's request for a job transfer from the kitchen to the bakery. As he was leaving th e 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 re spondents' 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 Vi ctim Compensation
and Government Claims Board. The claim did not mention Pechmann or allege that appellant had been injured by any one 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 private3. right of action under the pris on 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 cour t concluded appellant had sufficiently complied
with the Tort Claims Act but failed to exhaus t his administrative remedies with regard to
Pechmann and Watains. It fu rther concluded appellant had no private right of action for violation of the administrative regulations. Appellant's FEHA clai ms 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 protecte d characteristic or activity. Appellant now contends each of these rulings was erroneous. Standard of Review
We review de novo the order sust aining 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 fact ual allegations in the complaint and other relevant matters that are properly the subject of judicial notice. We liberally construe the factual allegations to determine whethe r they state a cause of action. ( Id .) Where, as here, the trial court has sustained the demurre r without leave to ame nd, we must decide
whether there is a reasonable possibility appellant could cure the defects by amending the complaint. It is appellant's burden to de monstrate 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, four th, eighth, ninth, tenth, twelfth and
thirteenth causes of action a ttempt to allege claims fo r 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 in mate 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 compla int fails for another reason. It does not4. allege that he suffered any adverse employmen t action and does not, therefore, allege a
cause of action under FEHA. FEHA prohibits discrimi nation "in terms, conditio ns or privileges of employment." (§ 12940, subd. (a).) This prohibition is often referred to as the requirement "that the discriminatory acti on result in 'adverse employment action.' ( Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028 , [1042] . . . .)" ( Horsford v. Board of Trustees of Ca lifornia State University (2005) 132 Cal.App.4th 359, 373.) To be actionable, the change in employment te rms or conditions must be substantial and detrimental to the employee. ( Id. ) "Minor or relatively trivia l 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 empl oyment 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 in appropriate gesture toward him, sent him home from work early once be cause 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 approve d 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 le ss desirable work assignment as a result of Pol's behavior. Nor has appellant alleged th at his prospects for future job assignments have been negatively impacted by these isolat ed incidents. The incidents described by appellant do not rise to the level of adve rse 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 empl oyment 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 substa ntial part by reasons of race [or another relevant characteristic]." ( Id. ) Appellant alleges no such f acts. There is no allegation that respondents used racially derogatory la nguage, expressed discriminatory opinions or
otherwise behaved in a r acially hostile manner. Similarly, appellant has alleged no facts supporting his allegation that respondents discriminated agai nst him based on his mental illness or disability. The only allegation related to this claim is that Pol told a me mber of the custody staff that appellant seemed suicidal, which appellant denied. Th ere is no allegation the report was motivated by discriminatory intent or that appellant suff ered as a consequence of it. Again, this
isolated incident does not constitute an a dverse employment action and cannot, therefore,
form the basis for a cause of action under FEHA. Finally, appellant alleges the comme nt 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 viol ence or the threat thereof." ( Herberg v. Cal. Institute of
Arts (2002) 101 Cal.App.4th 142, 151.) Appellant does not alle ge that Pol was physically
violent toward him or that Po l 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, fi fth, sixth and sevent h causes of action allege that respondents viol ated various administrative re gulations relating to state prisons. There is, however, no private right of action to enforce these regulations. "Only the Legislature, through enactment of a statut e, can create a private right of action to directly enforce an administrate regulation . . . ." ( Thurman v. Bayshore Transit Management Inc. (2012) 203 Cal.App.4t h 1112, 1132.) No such statute exists with6. 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 ["Gene rally, prison disciplin e 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 co mplaint failed to allege facts sufficient to state a cause of ac tion, either for violation of FEHA or for violation of administrative regulations. A ppellant has not demonstrated the complaint
could be amended to cure t hose defects. Consequently, we conclude the trial court correctly sustained respondents' de murrer 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 Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Se nior Assistant Attorn ey General, Thoma Patterson, Supervising Deputy A ttorney General, Neah Huynh, Deputy Attorney General, for Plaintiff and Respondent.