FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROSETTA SURRELL, 

No. 06-15400 Plaintiff-Appellant,

D.C. No.

v.  CV-04-02143-FCD/

CALIFORNIA WATER SERVICE CO., a JFM

corporation; YVONNE PILE-COX,

OPINION Defendants-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

Frank C. Damrell, District Judge, Presiding

Argued and Submitted

December 5, 2007—San Francisco, California

Filed March 11, 2008

Before: Dorothy W. Nelson and Stephen Reinhardt,

Circuit Judges, and Louis F. Oberdorfer,*

Senior District Judge.

Opinion by Judge Oberdorfer

*The Honorable Louis F. Oberdorfer, Senior United States District

Judge for the District of Columbia, sitting by designation. 

2325
COUNSEL

Daniel L. Mitchell, Law Office of Daniel L. Mitchell, Alameda, California, for the appellant. 

2330 SURRELL v. CALIFORNIA WATER SERVICE
Raymond F. Lynch, Amy L. Keyser, Hanson Bridgett Marcus

Vlahos & Rudy, LLP, San Francisco, California, for the

appellee. 

OPINION

OBERDORFER, Senior District Judge: 

Rosetta Surrell brought numerous federal and state discrimination and retaliation claims against her employer, California

Water Service Co. (“Cal Water”), and her former supervisor,

Yvonne Pile-Cox (“Cox”). The district court granted summary judgment to both Defendants. We affirm.

I. BACKGROUND

Cal Water is a wholly owned subsidiary of California

Water Service Group, a privately owned company that provides water service to businesses and consumers in communities throughout California. Surrell, an African-American

woman, began employment as a customer-service representative in the company’s Stockton District in January 1997. Cox

was the Office Manager and Surrell’s supervisor. Surrell’s job

duties included answering phones, performing data entry, filing records, and dispatching work orders. In 1998, Surrell bid

on and received, based on her seniority at Cal Water, a

higher-level customer-service position. At all times during her

employment with Cal Water, she was a member of the Utility

Workers Union of American AFL-CIO, which had a

collective-bargaining agreement with Cal Water. Under this

agreement, vacant or newly created positions were open for

bid by current employees and filled based on seniority. But

temporary jobs that would not last longer than 120 days were

filled at management’s discretion, without regard to seniority.

The agreement also provided that Cal Water could submit

employees to drug testing if they appeared impaired. 

SURRELL v. CALIFORNIA WATER SERVICE 2331
In April 2001, Surrell was in a car accident. Because of her

injuries, she had difficulty lifting her hands above her head

and could not do household chores. She was taking Vicodin

at this time. Cal Water granted her a leave of absence. She

had expected to return to work by July 1, 2001, but the pain

persisted, and Cal Water granted her further medical leave

through the rest of the year.

In early 2002, when Surrell was still on medical leave, Cox

announced that she was going to retire, creating an opening

for the Office Manager position. This vacancy was posted

within the company in February 2002, and several Cal Water

employees applied. After the top two candidates declined to

accept an offer for the position, Cal Water looked for outside

applicants. Surrell requested and was allowed to be included

in the process. 

On April 4, 2002, while her application for Office Manager

was pending, Surrell returned to work. Her doctor had provided a letter stating that she was able to do a full workload

without restrictions, but she was still taking numerous prescription drugs as needed for her injuries. 

Also in April 2002, Surrell requested but was denied training for the Head Cashier position, which was to be available

for five days in June 2002 while the Head Cashier was on

vacation. (The parties refer to this on-the-job training for

another position as “cross-training.”) At the time of Surrell’s

request, Cal Water had a substantially increased workload

because it was changing to a new computer system and had

just taken over a new billing operation. Accordingly, there

was no formal cross-training program in place; employees

would simply informally train with other employees if they

had time after completing their job. In June 2002, Surrell

learned that Cal Water was cross-training Denise Holt for the

position. Cox testified that Cal Water chose to train Holt for

the position because she had already informally learned a portion of that job on her own and therefore required less training

2332 SURRELL v. CALIFORNIA WATER SERVICE
than Surrell would have required. Holt, a younger, white coworker with less seniority than Surrell, filled in at the Head

Cashier position for this five-day period. In July 2002, the

Union filed a grievance, stating that Surrell “was unfairly

passed over for opportunities in crosstraining after repeatedly

requesting to be crosstrained.” Excerpts of Record (“ER”) at

196. The complaint was denied at the first stage of the grievance process, and it was not taken to arbitration. 

Also in July 2002, Cal Water chose not to promote Surrell

to the Office Manager position. Instead, Cal Water hired

Regina Coe, a younger, white, female applicant. Coe was a

trained accountant with a B.S. in Business Administration and

had five years of management and accounting experience.

On August 22, 2002, supervisors, including Cox, observed

Surrell at work and agreed that she appeared to be impaired

and that her speech was slurred. Surrell had taken some of her

prescription drugs, including Fiorinal, the night before, and

admitted that her speech was slurred at work. Cal Water

ordered her to submit to a drug test. The test showed the presence of Surrell’s prescribed medication for her back injuries

as well as the presence of cannabinoids (chemical compounds

present in marijuana). Accordingly, under the collectivebargaining agreement, Cal Water offered Surrell two choices:

either be discharged or enter a drug-rehabilitation program.

Surrell chose to enter the rehabilitation program and returned

to work in early October 2002. 

Tragically, Surrell’s son was murdered in December 2002.

She took some time off and believed that she was ready to

work again at the end of January 2003. During this period, she

received some Demerol injections, was taking Valium each

night to go to sleep, and was also taking Soma and Zanaflex.

She returned to work on January 29, 2003. When coworkers asked her about her son, she started crying, shaking,

and suffered a migraine headache. She had taken Valium the

SURRELL v. CALIFORNIA WATER SERVICE 2333
night before and then took a Vicodin at work. Observing Surrell in what appeared to them to be an impaired state, Surrell’s

supervisors had Surrell drug tested again. The test returned

positive for several substances. Surrell asserts that these substances were associated with her prescribed medications. Cal

Water then placed her on administrative leave with full salary

for approximately the next 10 months.

On July 9, 2003, Surrell filed a discrimination charge with

the California Department of Fair Employment and Housing

(the “State Employment Department”), alleging various discrimination claims against Cal Water. The State Employment

Department provided her with a right-to-sue letter and advised

her that she could obtain a federal right-to-sue letter from the

Equal Employment Opportunity Commission (EEOC). 

On December 9, 2003, Surrell informed Cal Water that she

was unable to return to work due to her medical condition.

She concluded that she was too emotionally scarred at that

time and would not have been able to function. Surrell

remained employed but on an unpaid leave of absence during

which she received health benefits. 

On July 6, 2004, Surrell filed suit in California state court

against Cal Water and Cox, alleging numerous federal and

state employment-discrimination claims based on race, sex,

and age. On October 13, 2004, Defendants removed the suit

to federal district court. On February 27, 2006, the district

court granted summary judgment to Cal Water and Cox on all

claims. Surrell v. Cal. Water Serv. Co., No. 04-2143, 2006

U.S. Dist. LEXIS 7326 (E.D. Cal. Feb. 27, 2006). Cal Water

and Cox later unsuccessfully moved for fees against Surrell.

Surrell brought this appeal of the district court’s grant of

summary judgment. 

2334 SURRELL v. CALIFORNIA WATER SERVICE
II. DISCUSSION

A. Standard of Review

We review de novo a district court’s grant of summary

judgment. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir.

2002). Summary judgment is appropriate when there is no

genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

Conclusory statements without factual support are insufficient

to defeat a motion for summary judgment. Nat’l Steel Corp.

v. Golden Eagles Ins. Corp., 121 F.3d 496, 502 (9th Cir.

1997). A district court’s exclusion of evidence at summary

judgment will stand unless the court abused its discretion. Id.

B. Surrell’s Claims

Surrell appeals the district court’s grant of summary judgment on her (1) discrimination, retaliation, and hostile-workenvironment claims under Title VII and 42 U.S.C. § 1981

(2003); and (2) physical-disability discrimination claim under

the California Fair Employment and Housing Act. 

1. Title VII and 42 U.S.C. § 1981 Claims

[1] Title VII prohibits employers from discriminating

against an individual based on race. 42 U.S.C. § 2000e2(a)(1) (2003). Similarly, § 1981 prohibits discrimination in

the “benefits, privileges, terms and conditions” of employment. 42 U.S.C. § 1981(b); Metoyer v. Chassman, 504 F.3d

919, 935 (9th Cir. 2007). When analyzing § 1981 claims, we

apply “the same legal principles as those applicable in a Title

VII disparate treatment case.” Id. at 930 (quoting Fonseca v.

Sysco Food Servs. of Ariz. Inc., 384 F.3d 840, 850 (9th Cir.

2004)). Title VII, however, “requires the plaintiff to exhaust

administrative remedies, such as filing a claim with the EEOC

. . . , before seeking a private action for damages, whereas

§ 1981 has no such requirement.” Id. at 947 n.11 (Bea, J., disSURRELL v. CALIFORNIA WATER SERVICE 2335
senting) (citing 42 U.S.C. § 2000e-5(f)). We discuss first the

Title VII exhaustion question and then reach the merits of

both Surrell’s Title VII and § 1981 claims. 

a. Exhaustion of Title VII Claims

A person seeking relief under Title VII must first file a

charge with the EEOC within 180 days of the alleged unlawful employment practice, or, if, as here, the person initially

instituted proceedings with the state or local administrative

agency, within 300 days of the alleged unlawful employment

practice. 42 U.S.C. § 2000e-5(e)(1). If the EEOC does not

bring suit based on the charge, the EEOC must “notify the

person aggrieved” that she can file suit. Id. § 2000e-5(f)(1).

The notice is accomplished through a right-to-sue letter. Once

a person receives an EEOC right-to-sue letter, she has 90 days

to file suit. Id. § 2000e-5(f)(1). 

[2] Although Surrell never filed a charge directly with the

EEOC, her charge filed with the State Employment Department is deemed filed with the EEOC pursuant to a worksharing agreement between the two entities. See Green v. Los

Angeles County Superintendent of Schools, 883 F.2d 1472,

1476 (9th Cir. 1989) (charge filed with the State Employment

Department “is deemed to have been received by the EEOC

on the same day . . . because under the worksharing agreement the [State Employment Department] was an agent of the

EEOC for the purpose of receiving charges”). 

The State Employment Department also provided her with

a state right-to-sue letter, which notes that “[i]f a federal

notice of Right-To-Sue is wanted, the [EEOC] must be visited

to file a complaint within 30 days of this [notice] or within

300 days of the alleged discriminatory act, whichever is earlier.” ER at 32. Surrell, however, never obtained a federal rightto-sue letter from the EEOC. Cal Water and Cox contend that

this failure bars her claim. Surrell responds that obtaining the

state right-to-sue letter suffices for her suit to proceed. This

2336 SURRELL v. CALIFORNIA WATER SERVICE
issue raises two questions: (1) whether the federal right-to-sue

letter is an absolute jurisdictional prerequisite, or whether it

is simply a general requirement for a Title VII claim that may

be excused in particular cases; and (2) if simply a general

requirement, whether that requirement should be excused

here. 

[3] Failure to obtain a federal right-to-sue letter does not

preclude federal jurisdiction. In Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 393 (1982), the Supreme Court held that,

although Title VII requires that plaintiffs timely exhaust

administrative remedies, “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit

in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.”

The Supreme Court explained that Title VII’s timeliness provision is entirely separate from Title VII’s jurisdictional provisions and “does not speak in jurisdictional terms or refer in

any way to the jurisdiction of the district courts.” Id. at 394.

Because Title VII’s provisions requiring notice of the right to

sue are similarly separate from the jurisdictional provisions,

the right-to-sue requirement is similarly non-jurisdictional.

See Temengil v. Trust Territory of Pacific Islands, 881 F.2d

647, 654 (9th Cir. 1989) (“Pursuit of administrative remedies

is a condition precedent to a Title VII claim. The requirement,

however, is not jurisdictional.”) (citations omitted); KarimPanahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th

Cir. 1988) (explaining that “Plaintiff must file a discrimination charge with the Equal Employment Opportunity Commission and receive a right-to-sue letter from the

Commission,” and that, under Zipes, “[f]ailure to observe

these requirements renders a suit subject to dismissal in the

absence of any equitable consideration to the contrary”)

(emphasis added); see also Pietras v. Bd. of Fire Comm’rs,

180 F.3d 468, 474 (2d Cir. 1999) (“Every circuit before us

that has faced the question has held that a plaintiff’s failure

to obtain a notice-of-right-to-sue[ ]letter is not a jurisdictional

SURRELL v. CALIFORNIA WATER SERVICE 2337
bar, but only a precondition to bringing a Title VII action that

can be waived by the parties or the court.”). 

[4] The general requirement of a federal right-to-sue letter

remains, however. Courts typically look to the relative fault

of the parties to determine whether the failure to obtain a

right-to-sue letter should be excused. See, e.g., Pietras, 180

F.3d at 474 (allowing claim to proceed where EEOC erroneously refused to send right-to-sue letter and plaintiff was diligent in seeking it). Such an inquiry could pose significant

problems for Surrell, who was specifically notified by the

State Employment Department that she needed to visit the

EEOC to obtain a federal right-to-sue letter. See, e.g., Roman

v. Cty. of Los Angeles, 85 Cal. App. 4th 316, 326 (Cal. App.

2000) (barring Title VII claim because “the [state] right-tosue notice specifically advised appellant that if he wanted a

federal right-to-sue notice he had to file a complaint with the

EEOC”). On the other hand, courts have also concluded that

once a plaintiff is entitled to receive a right-to-sue letter (as

Surrell was once the EEOC did not timely act on her properly

filed charge), it makes no difference whether the plaintiff

actually obtained it. See, e.g., Moore v. City of Charlotte, 754

F.3d 1100, 1104 n.1 (4th Cir. 1985) (“Entitlement to the letter, without actual receipt of it, is sufficient to support federal

jurisdiction.”). Indeed, courts have reached that conclusion in

this precise context where worksharing agreements exist

between the federal and state agencies. See Burke v. Cornerstone, No. 07-889, 2007 U.S. Dist. LEXIS 76662, at *5-6 (D.

Conn. Oct. 12, 2007) (“[A]s the purposes of the exhaustion

requirement—to provide notice to parties charged with violations and to facilitate voluntary compliance should the investigating agency find merit in the complaint—have been served

by the state proceeding, the Court does not view the omission

of the actual right-to-sue letter as grounds for dismissal.”); but

cf. Jones v. Grinnell Corp., 235 F.3d 972, 975 (5th Cir. 2001)

(“federal-state cooperation does not extend to the exhaustion

of administrative remedies”). This is a persuasive approach,

which we now adopt. We hold that where, as here, a plaintiff

2338 SURRELL v. CALIFORNIA WATER SERVICE
is entitled to receive a right-to-sue letter from the EEOC, a

plaintiff may proceed absent such a letter, provided she has

received a right-to-sue letter from the appropriate state

agency. Thus, Surrell’s claims may proceed. 

b. Merits of Title VII and 42 U.S.C. § 1981 Claims

Typically, we apply the familiar McDonnell Douglas burden shifting framework for Title VII and § 1981 claims.

Metoyer, 504 F.3d at 930 (citing McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973)). A plaintiff may alternatively

proceed by simply producing “direct or circumstantial evidence demonstrating that a discriminatory reason more likely

than not motivated the employer.” Id. at 931. Here, the parties

and the court below applied the McDonnell Douglas framework; we do so as well. 

[5] Under this framework, the plaintiff first must establish

a prima facie case of discrimination or retaliation. Id. at 931

n.6. To do so through indirect evidence, the plaintiff must

show that (1) she is a member of a protected class; (2) she

applied for a job for which she was qualified; (3) she was

rejected; and (4) the position remained open and the employer

sought other similarly-qualified employees. McDonnell Douglas Corp., 411 U.S. at 802.

[6] If the plaintiff establishes a prima facie case, the burden

then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its allegedly discriminatory or retaliatory conduct. Metoyer, 504 F.3d at 931 n.6. If the employer

articulates a legitimate reason for its action, “the presumption

of discrimination drops out of the picture, and the plaintiff

may defeat summary judgment by satisfying the usual standard or proof required . . . under Fed. R. Civ. P. 56(c).” Id.

(quoting Cornwell v. Electra Central Credit Union, 439 F.3d

1018, 1028 (9th Cir. 2006)). The plaintiff may then offer evidence that “the employer’s proffered nondiscriminatory reason is merely a pretext for discrimination.” Dominguez-Curry

SURRELL v. CALIFORNIA WATER SERVICE 2339
v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir.

2005). 

Surrell raises three types of claims under Title VII and 42

U.S.C. § 1981: (1) discrimination (failure to promote and failure to cross-train); (2) retaliation; and (3) hostile work environment. We discuss each in turn. 

(1) Discrimination Claims

(a) Failure to promote 

[7] Surrell contends that Cal Water and Cox discriminated

against her based on her race when they promoted Regina Coe

to Office Manager. As an initial matter, Cox had no role in

Surrell’s application for the promotion, so Cox is entitled to

summary judgment on this claim. Even assuming that Surrell

sets forth a prima facie case as to Cal Water, she fails to show

that Cal Water’s articulated reason for promoting Coe—i.e.,

that Coe was more qualified—was pretextual. 

Coe was a trained accountant and received a bachelor-ofscience degree in business administration from California

State University in 2000. She had five years of management

and accounting experience, and she worked for approximately

one year as a City Administrator. Coe also had experience

with labor relations and demonstrated strong communication

skills. She was ranked first by all interview panel members.

Surrell stated that “[Coe] was not as well qualified as I was

to manage the Stockton Office; I understood the policies and

procedures; I knew what each job in that office required.” ER

at 560. Surrell, however, lacked Coe’s management experience, which was particularly suited to the Office Manager

position. Surrell raises three unavailing points in response. 

First, Surrell argues that Cal Water and Cox provided evidence regarding the Office Manager selection decision only in

their summary-judgment reply papers in the district court,

2340 SURRELL v. CALIFORNIA WATER SERVICE
improperly denying her the opportunity to respond. Surrell

testified at deposition, however, that her discrimination claim

was limited to the failure to cross-train for the Head Cashier

position; the Office Manager claim did not surface until her

opposition to Cal Water’s and Cox’s summary-judgment

motion, leaving them to reply at that point. The district court

nonetheless considered this claim—to Surrell’s benefit—“for

the sake of completeness.” Surrell, 2006 U.S. Dist. LEXIS

7326, at *5 n.3. She is responsible for her alleged inability to

respond. 

Second, Surrell contends that the district court improperly

excluded “her statistical analysis of Cal Water’s failure to

promote minorities.” Surrell’s Br. at 24. The statistical analysis consists of two, unsigned pages of typed notes without any

authentication as to author or content. Even Surrell’s counsel

admitted that Surrell did not verify or authenticate it. Supplemental Excerpts of Record (“SER”) at 80 (“[Y]ou’re right

about the fact that other than gathering it, she did not verify

it or authenticate it.”). Accordingly, the district court’s exclusion of this evidence was not an abuse of discretion.

Finally, Surrell contends that the district court improperly

ignored her testimony that she “had never seen any black people promoted to the office management positions since [she

has] been in the Stockton Office.” Surrell’s Br. at 24; ER at

559. We agree that the district court should have considered

this statement, which was based on Surrell’s personal knowledge. Nonetheless, without more, this general statement is

insufficient for a trier of fact to conclude that Cal Water’s

articulated reason for hiring Coe instead of Surrell was pretextual: Coe’s five years of management experience significantly distinguish her from Surrell as the most-qualified

candidate for the management position. 

(b) Failure to cross-train

Surrell also contends that Cal Water and Cox discriminated

against her by failing to cross-train her for the Head Cashier

SURRELL v. CALIFORNIA WATER SERVICE 2341
position. Surrell sets forth a prima facie case on this claim,

stating that Cox refused to train her for the position and that

Defendants cross-trained Denise Holt, a younger, white

woman with less seniority. 

[8] Defendants have produced a non-discriminatory reason

for not training Surrell. Cox testified that Cal Water chose to

train Holt for the position because she had already done a portion of that job that she had learned on her own and therefore

required less training than Surrell would have required. This

was particularly relevant because Cal Water’s time for training was limited because it was in the process of converting to

a new computer system and taking over a new billing account.

Surrell contends that “Cal Water offered no material evidence that it was engaged in the claimed conversion such that

training could not be accomplished,” Surrell’s Br. at 27, and

that Cox’s testimony regarding the conversion is inadmissible

hearsay. But deposition testimony is ordinarily hearsay at

trial, not in a summary-judgment motion. Orr v. Bank of Am.,

285 F.3d 764, 779 n.27 (9th Cir. 2002); Fed. R. Civ. P. 56(c)

(allowing deposition testimony in summary-judgment

motion). Moreover, Surrell admitted that management told

her that the increased office workload due to the conversion

was the reason Cal Water did not cross train her, and she

admitted that the conversion caused the increased workload.

Surrell fails to provide sufficient evidence that this reason was

pretextual. In any event, the collective-bargaining agreement

explicitly states that “[t]emporary jobs that cannot be predetermined to last longer than one hundred twenty (120) days

will be filled at management’s discretion”—without regard to

seniority. ER at 315. Knowing that it could have Holt fill in

for this position at its discretion, management could fairly

decide—because of concerns about limited time—to crosstrain her instead of Surrell. 

2342 SURRELL v. CALIFORNIA WATER SERVICE
(2) Retaliation Claim

[9] Surrell contends that Cal Water and Cox retaliated

against her by drug testing her after she filed her union grievance alleging that Cal Water’s failure to cross-train her for the

Head Cashier position was discriminatory. Title VII makes it

unlawful “for an employer to discriminate against any of [its]

employees or applicants for employment . . . because [she]

has opposed any practice.” 42 U.S.C. § 2000e-3(a). Section

1981 prohibits “racial discrimination in taking retaliatory

action.” Manatt v. Bank of Am. N.A., 339 F.3d 792, 798 (9th

Cir. 2003) (citation omitted).1 To establish a prima facie case

of retaliation, a plaintiff must prove (1) she engaged in a protected activity; (2) she suffered an adverse employment

action; and (3) there was a causal connection between the

two. Bergene v. Salt River Project Agric. Improvement and

Power Dist., 272 F.3d 1136, 1140-41 (9th Cir. 2001). Once

established, the burden shifts to the defendant to set forth a

legitimate, non-retaliatory reason for its actions; at that point,

the plaintiff must produce evidence to show that the stated

reasons were a pretext for retaliation. Id.

[10] Even assuming that Surrell has established a prima

facie case, Cal Water has presented a legitimate, nonretaliatory reason for conducting the drug tests: Surrell

appeared to be an impaired state. In the first instance, on

August 22, 2002, supervisors observed her and concurred that

she appeared to be in such a state and that she was slurring

her speech. Surrell admits that she was slurring her speech.

The test results showed the presence of both prescription

medications and illegal cannabinoids in her system. Following

1The Supreme Court is currently considering whether retaliation claims

lie under § 1981. See Humphries v. CBOCS West, 474 F.3d 387 (7th Cir.

2007) cert. granted, 2007 U.S. LEXIS 9079 (U.S. Sept. 25, 2007) (No. 06-

1431). Because Surrell’s (perhaps soon-to-be nonexistent) retaliation

claim fails on the merits, Humphries’ preclusion of such a claim will not

alter the result here. 

SURRELL v. CALIFORNIA WATER SERVICE 2343
her return to work after completing the drug-treatment program, several supervisors again observed her to be impaired,

and she again tested positive for a number of substances. 

[11] Surrell fails to raise a triable issue regarding whether

Cal Water’s reasons for drug testing her were a pretext for

retaliation. She contends that the district court failed to consider her statement that “it was clear to [her] that the tests

were flawed” because she had “never smoked cigarettes[—

]least of all marijuana” and “never consumed alcohol in [her]

lifetime.” ER at 563. Other than this unsubstantiated statement, however, Surrell presents no evidence contradicting the

results of the drug tests. More importantly, even if the tests

were flawed, Cal Water had ample basis to conduct the tests

in the first place: Surrell does not dispute that she appeared

impaired and was taking drugs. Accordingly, Surrell cannot

establish that this legitimate basis for testing was actually a

pretext to retaliate. 

(3) Hostile-Work-Environment Claim 

Surrell also claims that Cal Water and Cox subjected her to

a hostile work environment based on comments Cox made to

her from 1998 to 2002. On at least one occasion, Cox confronted Surrell in front of a customer about failing to perform

an aspect of her job. Cox also accused Surrell, in front of a

customer and co-worker, of failing to pay attention to her job

and, in turn, causing the company to lose money. Surrell

asserts that this accusation was based on paperwork that did

not belong to her. Also, on more than one occasion, Cox told

Surrell that she was too slow with her work. 

[12] To establish a prima facie case for a hostile-work environment claim, Surrell must raise a triable issue of fact as to

whether (1) the defendants subjected her to verbal or physical

conduct based on her race; (2) the conduct was unwelcome;

and (3) the conduct was sufficiently severe or pervasive to

2344 SURRELL v. CALIFORNIA WATER SERVICE
alter the conditions of her employment and create an abusive

working environment. Manatt, 339 F.3d at 798. 

[13] Surrell cannot reach the first step: she presents no evidence that Cox’s comments were based on race. These comments were all performance related. Moreover, the alleged

comments were not sufficiently severe or pervasive to sustain

a hostile-work-environment claim. To resolve such a claim,

courts consider all the circumstances, including the frequency

of the allegedly discriminatory conduct, its severity, and

whether it unreasonably interferes with an employee’s work

performance. Brooks v. City of San Mateo, 229 F.3d 917, 923

(9th Cir. 2000). The foregoing considered, Surrell’s hostilework-environment claim fails.

2. California-Fair-Employment-and-Housing-Act

Claim

[14] Finally, Surrell contends that the district court improperly granted summary judgment on her physical-disability discrimination claim under the California Fair Employment and

Housing Act, Cal. Gov’t Code §§ 12900-12996 (2002). Under

that Act, an employer must reasonably accommodate disabled

employees. Jensen v. Wells Fargo Bank, 85 Cal. App. 4th

245, 257 (2000). Although Cal Water and Cox concede that

the district court erroneously concluded that Surrell failed to

exhaust administrative remedies under the Act, this error is

immaterial because her claim lacks merit. Every time that

Surrell claimed she was unable to work, Cal Water provided

her with a leave of absence. Further, Surrell admits that she

did not know of any accommodation that Cal Water could

have provided for her claimed physical disability. Accordingly, this claim also fails. 

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment in favor of Cal Water and Cox.

SURRELL v. CALIFORNIA WATER SERVICE 2345