Surrell v. Ca Water Service Co. ( 2008 )

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
2330 SURRELL v. CALIFORNIA WATER SERVICE
COUNSEL
Daniel L. Mitchell, Law Office of Daniel L. Mitchell, Ala-
meda, California, for the appellant.
SURRELL v. CALIFORNIA WATER SERVICE 2331
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 discrim-
ination and retaliation claims against her employer, California
Water Service Co. (“Cal Water”), and her former supervisor,
Yvonne Pile-Cox (“Cox”). The district court granted sum-
mary 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 pro-
vides water service to businesses and consumers in communi-
ties throughout California. Surrell, an African-American
woman, began employment as a customer-service representa-
tive 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, fil-
ing 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.
2332 SURRELL v. CALIFORNIA WATER SERVICE
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 pro-
vided a letter stating that she was able to do a full workload
without restrictions, but she was still taking numerous pre-
scription drugs as needed for her injuries.
Also in April 2002, Surrell requested but was denied train-
ing 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 por-
tion of that job on her own and therefore required less training
SURRELL v. CALIFORNIA WATER SERVICE 2333
than Surrell would have required. Holt, a younger, white co-
worker 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 griev-
ance 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 pres-
ence of Surrell’s prescribed medication for her back injuries
as well as the presence of cannabinoids (chemical compounds
present in marijuana). Accordingly, under the collective-
bargaining 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 co-
workers asked her about her son, she started crying, shaking,
and suffered a migraine headache. She had taken Valium the
2334 SURRELL v. CALIFORNIA WATER SERVICE
night before and then took a Vicodin at work. Observing Sur-
rell 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 sub-
stances 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 dis-
crimination 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.
SURRELL v. CALIFORNIA WATER SERVICE 2335
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 judg-
ment on her (1) discrimination, retaliation, and hostile-work-
environment 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. § 2000e-
2(a)(1) (2003). Similarly, § 1981 prohibits discrimination in
the “benefits, privileges, terms and conditions” of employ-
ment. 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., dis-
2336 SURRELL v. CALIFORNIA WATER SERVICE
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 unlaw-
ful 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 Depart-
ment is deemed filed with the EEOC pursuant to a workshar-
ing 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 agree-
ment 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 earli-
er.” ER at 32. Surrell, however, never obtained a federal right-
to-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
SURRELL v. CALIFORNIA WATER SERVICE 2337
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 discrimina-
tion with the EEOC is not a jurisdictional prerequisite to suit
in federal court, but a requirement that, like a statute of limita-
tions, is subject to waiver, estoppel, and equitable tolling.”
The Supreme Court explained that Title VII’s timeliness pro-
vision is entirely separate from Title VII’s jurisdictional pro-
visions 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); Karim-
Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th
Cir. 1988) (explaining that “Plaintiff must file a discrimina-
tion charge with the Equal Employment Opportunity Com-
mission 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
2338 SURRELL v. CALIFORNIA WATER SERVICE
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 errone-
ously refused to send right-to-sue letter and plaintiff was dili-
gent 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-to-
sue 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 let-
ter, 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. Corner-
stone, 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 viola-
tions and to facilitate voluntary compliance should the investi-
gating 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
SURRELL v. CALIFORNIA WATER SERVICE 2339
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 bur-
den 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 evi-
dence 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 frame-
work; 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 Doug-
las 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, nondis-
criminatory reason for its allegedly discriminatory or retalia-
tory 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 stan-
dard 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 evi-
dence that “the employer’s proffered nondiscriminatory rea-
son is merely a pretext for discrimination.” Dominguez-Curry
2340 SURRELL v. CALIFORNIA WATER SERVICE
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 fail-
ure to cross-train); (2) retaliation; and (3) hostile work envi-
ronment. 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-of-
science 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 experi-
ence, 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 evi-
dence regarding the Office Manager selection decision only in
their summary-judgment reply papers in the district court,
SURRELL v. CALIFORNIA WATER SERVICE 2341
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 analy-
sis 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. Supple-
mental 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 exclu-
sion 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 peo-
ple 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 knowl-
edge. 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 pre-
textual: Coe’s five years of management experience signifi-
cantly 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
2342 SURRELL v. CALIFORNIA WATER SERVICE
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 por-
tion 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 train-
ing 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 evi-
dence 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 prede-
termined 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 cross-
train her instead of Surrell.
SURRELL v. CALIFORNIA WATER SERVICE 2343
(2) Retaliation Claim
[9] Surrell contends that Cal Water and Cox retaliated
against her by drug testing her after she filed her union griev-
ance 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 pro-
tected 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, non-
retaliatory 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
1
The 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.
2344 SURRELL v. CALIFORNIA WATER SERVICE
her return to work after completing the drug-treatment pro-
gram, 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 con-
sider 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 state-
ment, 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 con-
fronted 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 envi-
ronment 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
SURRELL v. CALIFORNIA WATER SERVICE 2345
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 evi-
dence that Cox’s comments were based on race. These com-
ments 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 hostile-
work-environment claim fails.
2. California-Fair-Employment-and-Housing-Act
Claim
[14] Finally, Surrell contends that the district court improp-
erly granted summary judgment on her physical-disability dis-
crimination 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. Accord-
ingly, 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.