LVN’s FEHA Claims Were Barred By Government Code Section 844.6 Immunity

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Public Education Matters
CLIENT TYPE: Public Education, Public Employers, Public Safety
DATE: Mar 06, 2023

Jennifer Bitner and Evelina Herrera were employed as licensed vocational nurses by the California Department of Corrections and Rehabilitation (CDCR). Their duties included one-on-one suicide watch of inmates. Bitner and Herrera contended that male inmates sexually harassed them and that CDCR failed to appropriately prevent or correct this behavior. Based on these allegations, the LVNs filed a lawsuit for a gender-based hostile work environment and failure to prevent harassment under the Fair Employment and Housing Act (FEHA).

Government Code Section 844.6 grants immunity to public entities that run prisons, such as CDCR.  This immunity states that “a public entity is not liable for … [a]n injury proximately caused by any prisoner.”  By asserting this immunity as an affirmative defense, CDCR was saying even if Bitner and Herrera’s allegations were accurate, CDCR could not be held liable because of this immunity. CDCR moved for summary judgment using this theory.

The LVN’s countered that the immunity did not apply to FEHA claims. They also argued that their injuries were not proximately caused by the prisoners and therefore the Section 844.6 immunity was not applicable. The superior court disagreed with both of these arguments and granted summary judgment in favor of CDCR. The LVNs appealed to the California Court of Appeal.

The Court of Appeal analyzed the alleged exception to Section 844.6 immunity first, explaining that the law outlined a variety of exceptions to the rule of immunity, but that FEHA was not one of the exceptions.

The Court of Appeal then analyzed the second claim – that Section 844.6 was inapplicable to their case because the sexual harassment was not proximately caused by the prisoners. Instead, the LVNs argued they were injured because CDCR failed to intervene on their behalf. The Court of Appeal noted this argument was farfetched because an injury can have more than one proximate cause. Here, the inmates’ harassing conduct was clearly a proximate cause of the injury of sexual harassment. The Court of Appeal held that summary judgment on this issue was proper.

Bitner v. Department of Corrections and Rehabilitation (2023) 87 Cal.App.5th 1048.

Note: This case shows the broad scope of the Government Code Section 844.6 immunity.  The California Supreme Court has also applied the Government Code Section 820.2 discretionary immunity to bar a superintendent’s FEHA claims against school board members who voted to terminate the superintendent’s contract.  Caldwell v. Montoya, 10 Cal.4th 972 (1985).

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