Bailey (Twanda) v. San Francisco District Attorney's Office et al.

IN THE SUPREME COURT OF
CALIFORNIA
TWANDA BAILEY,
Plaintiff and Appellant,
v.
SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE et al.,
Defendants and Respondents.
S265223
First Appellate District, Division One
A153520
San Francisco City and County Superior Court
CGC 15-549675
July 29, 2024
Justice Evans authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Groban, and Jenkins concurred.

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1
BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S
OFFICE
S265223
Opinion of the Court by Evans, J.
Plaintiff Twanda Bailey sued the San Francisco District
Attorney’s Office, former District Attorney George Gascon, and
the City and County of San Francisco (collectively, the City) for
violations of the California Fair Employment and Housing Act
(FEHA), Government Code section 12900 et seq.1 Under FEHA,
it is an unlawful employment practice for an employer to harass
an employee because of their race. (§ 12940, subd. (j)(1).) It is
also an unlawful employment practice for an employer to
retaliate against an employee for engaging in protected activity,
such as making a complaint of racial harassment in the
workplace. (§ 12940, subd. (h).)
Bailey, who is African-American, alleges that a coworker
with whom she shared an office and job duties called her the N-
word. Bailey further alleges that, after she reported this
incident, the human resources manager for the District
Attorney’s Office obstructed the filing of a formal complaint,
engaged in a course of intimidating conduct, and ultimately
threatened Bailey that she was “going to get it.” Bailey’s action
against the City alleges she was subjected to racial harassment
by her coworker and retaliation by the human resources
manager after complaining of the harassment. The trial court
1 All further statutory references are to the Government
Code, unless otherwise indicated.

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
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granted summary judgment for the City, finding Bailey had
failed to make a prima facie showing on her FEHA claims. The
Court of Appeal affirmed, and we granted review.
This case asks us to assess whether certain conduct may
be actionable under FEHA. First, we assess whether a
coworker’s one-time use of a racial slur may be actionable in a
claim of harassment, that is, whether such an incident may be
so severe as to alter the conditions of employment and create a
hostile work environment. For the reasons discussed below, we
conclude that an isolated act of harassment may be actionable if
it is sufficiently severe in light of the totality of the
circumstances, and that a coworker’s use of an unambiguous
racial epithet, such as the N-word, may be found to suffice.
Second, we assess whether a course of conduct that effectively
seeks to withdraw an employee’s means of reporting and
addressing racial harassment in the workplace is actionable in
a claim of retaliation, that is, whether such conduct may
constitute an adverse employment action. We conclude that it
may. Applying these standards, the record presents triable
issues of fact on Bailey’s harassment and retaliation claims. We
therefore reverse the judgment of the Court of Appeal.
I. BACKGROUND
Because this is an appeal from an order granting a motion
for summary judgment, we take the facts from the record that
was before the trial court when it ruled on that motion.
(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037
(Yanowitz).) A trial court properly grants a motion for summary
judgment only if no triable issue exists as to any material fact
and the defendant is entitled to judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c); Salas v. Sierra Chemical Co.

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
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(2014) 59 Cal.4th 407, 415.) “The moving party bears the burden
of showing the court that the plaintiff ‘has not established, and
cannot reasonably expect to establish, a prima facie case . . . .’ ”
(Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460
(Miller), citing Saelzler v. Advanced Group 400 (2001) 25 Cal.4th
763, 768.) On appeal, we examine the record de novo, viewing
the evidence in the light most favorable to the plaintiff as the
losing party and resolving any evidentiary doubts or
ambiguities in her favor. (Elk Hills Power, LLC v. Board of
Equalization (2013) 57 Cal.4th 593, 606 (Elk Hills); Wiener v.
Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142
(Wiener).)
Bailey began working at the District Attorney’s Office in
2001 as a clerk in the records department. The office promoted
her in 2011 to an investigative assistant position. Bailey worked
alongside Saras Larkin, another investigative assistant. The
two sat next to each other in the records room. Bailey is African-
American. Larkin is Fijian/East Indian. On January 22, 2015,
while in the records room, Larkin told Bailey that she saw a
mouse run under Bailey’s desk.2 Bailey was startled and
jumped out of her chair. Larkin walked up to Bailey and quietly
said, “You [N-words] is so scary.”3
Immediately following this incident, Bailey left her office
and told three coworkers what Larkin had said. Bailey was
crying and upset. Although Bailey was offended by Larkin’s use
of the racial slur, she did not immediately complain to human
resources (HR) because she feared harassment and retaliation.
2 All further dates refer to 2015 unless otherwise specified.
3 Epithet redacted here and throughout the opinion.

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This fear was based on Bailey’s understanding that other
employees had been harassed and discriminated against
following incidents with Larkin. Specifically, Bailey understood
that Larkin was best friends with the office’s department
personnel officer, Evette Taylor-Monachino, and that Larkin’s
actions against other African-American women, Davonne Mark
and Sydney Fisher, caused them to be reassigned or to separate
from the District Attorney’s Office. In a declaration, Mark
attested to the close friendship between Taylor-Monachino and
Larkin. Mark had worked in the records room with Bailey and
Larkin but stated that she was reassigned after Larkin made
false accusations against her.
On January 23, at an offsite office party, Bailey’s
supervisor, Alexandra Lopes, overheard a conversation about
the incident between Bailey and Larkin. Lopes told Bailey that
she planned to notify HR. Bailey felt more comfortable with
Lopes reporting it, rather than doing so herself. On January 28,
Lopes reported the incident to Sheila Arcelona, the assistant
chief of finance and administration. Arcelona conferred with
Taylor-Monachino and Eugene Clendinen, the chief
administrative and financial officer, who reported directly to the
district attorney. They agreed Arcelona should meet with Bailey
and Larkin separately, and that Taylor-Monachino, as the
department personnel officer, should attend the meetings.
Arcelona and Taylor-Monachino met with Bailey on
January 29. Bailey reiterated that Larkin had used an offensive
racial slur and confirmed that this was the only time she had
heard Larkin use such language. Arcelona informed Bailey that
“management would address the issue” and that Bailey should
report any inappropriate behavior directly to management.
Arcelona and Taylor-Monachino then met with Larkin, who “did

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
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not admit to making the alleged remark.” Arcelona counseled
Larkin on the city’s “Harassment-Free Workplace Policy” and
informed her that use of the alleged language was
“unacceptable.” Larkin asked if Bailey filed a complaint and
was told that no complaint had been filed. No further action was
taken against Larkin at that time.
Arcelona documented the meetings with Bailey and
Larkin and provided a written summary to Clendinen and
Taylor-Monachino. Although Taylor-Monachino was the HR
representative charged with reporting incidents of workplace
harassment to the city’s Department of Human Resources
(DHR), she did not file a formal complaint as city policy
required. Bailey and Larkin shared an office and were familiar
with each other’s job duties. Although there is some dispute as
to the period between 2013 and 2015, it is undisputed that, prior
to 2013 and following the incident on January 22, Bailey and
Larkin were required to cover for each other during absences.
After the meetings with Bailey and Larkin, Arcelona raised the
possibility of separating them, but Taylor-Monachino objected,
stating “there was no way to do that without creating the
appearance that one or the other had done something wrong.
And since the allegation had never been proven, [Arcelona]
should not take action to separate them.” According to Arcelona,
Clendinen deferred to Taylor-Monachino.
On March 23, Bailey asked Taylor-Monachino for a copy
of the complaint regarding the January 22 incident. Taylor-
Monachino informed Bailey that no complaint existed. When
Bailey requested that a complaint be filed, Taylor-Monachino
refused. Taylor-Monachino stated that Bailey should not have
told her coworkers about the incident with Larkin, adding that,
by doing so, Bailey could cause a hostile work environment for

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
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6
Larkin and Larkin’s work could be “messed with.” Upon leaving
the office, Bailey cried due to what she described as Taylor-
Monachino’s unprofessional behavior. Bailey then took leave
from March 27 to April 6.
After the meeting on March 23, Bailey perceived that
Taylor-Monachino’s conduct toward her changed. Taylor-
Monachino ignored Bailey; laughed at her; stared rudely at her;
and jeered at her, including by making a comment that Bailey’s
workers’ compensation claim was not “real.” According to
Bailey, this behavior was continuous and daily. Bailey later
testified that she did not believe Taylor-Monachino’s conduct
toward her had anything to do with race. However, for purposes
of summary judgment, it was undisputed that Taylor-
Monachino’s conduct was in retaliation for Bailey’s complaint
against Larkin.
On April 17, DHR received a report from someone outside
the District Attorney’s Office regarding Bailey’s complaint about
Larkin. On May 22, Bailey met with someone from DHR for an
intake interview. Bailey reported that Larkin subjected her to
“harassment/hostile work environment” based on race,
reiterating her allegations regarding the January 22 incident.
Bailey also reported that Taylor-Monachino subjected her to
retaliation, recounting the details of their interaction on
March 23. Bailey added that Taylor-Monachino’s conduct
towards her had changed after March 23. As a result, Bailey
felt she needed to avoid walking past Taylor-Monachino’s office,
which was next to the records room where Bailey worked.
On July 20, Arcelona and Lopes met with Bailey to discuss
her fiscal year performance review. Bailey received a “Met
Expectations” rating of 2 out of 3 on her 2014–2015 performance

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7
review; she had received a “Met Expectations” rating of 2 or 2.5
for each of her two prior performance reviews. The 2014–2015
performance review included a comment regarding two areas in
need of improvement: regular attendance and responsiveness
to supervisory requests. During the 2014–2015 fiscal year,
Bailey had used 24 days of sick leave. Supervisors and other
staff also had reported that Bailey seemed annoyed and irritated
by standard work requests. Bailey provided a written rebuttal
indicating she did not agree with her performance review.
Bailey stated she took sick leave and had trouble performing
Larkin’s duties as a result of stress from working with Larkin
and a fear of being accused of creating a hostile work
environment for Larkin as previously stated by Taylor-
Monachino. Bailey had anxiety attacks when asked to cover
Larkin’s desk.
On July 22, DHR sent Bailey a letter regarding her
complaint. The letter stated that, based on the information
provided, Bailey’s allegations were “insufficient to raise an
inference of harassment/hostile work environment or
retaliation” and therefore the department would “not
investigate [her] complaint.” While DHR acknowledged “the
extreme offensiveness of the ‘N’ word,” it stated that one
comment was insufficient to create an abusive working
environment. Regarding the alleged retaliation, DHR stated,
among other things, that Taylor-Monachino’s refusal to allow
Bailey to file a complaint “would not impair a reasonable
employee from making a complaint because [her] complaint had
already been reported by Ms. Lopes on January 26, 2015.” DHR
asserted that Taylor-Monachino’s other conduct, such as her
unwillingness to speak with Bailey and staring at Bailey were

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
8
mere “social slights.” DHR administratively closed the
complaint.
At the same time, DHR provided the District Attorney’s
Office with a confidential report that identified corrective action
the office should take in response to Bailey’s allegations.
Pursuant to this report, Clendinen met with Larkin on July 30
and asked her to execute an “Acknowledgement of Receipt and
Review” of the city’s Harassment-Free Workplace Policy.
Clendinen also met with Taylor-Monachino on July 30 and
provided her with a memorandum of instruction. The
memorandum instructed Taylor-Monachino that she was to
accept and formally document all equal employment
opportunity complaints and submit the same to DHR within five
business days.
On August 12, Bailey reported to Clendinen an incident
involving Taylor-Monachino. Bailey stated that, around
6:30 a.m., she was in her car waiting for a parking spot outside
the office when Taylor-Monachino pulled up alongside and
rolled down her window. Taylor-Monachino gestured in a
manner Bailey perceived as threatening. Although Bailey could
not hear the words spoken, she saw Taylor-Monachino saying
“you are going to get it.” Bailey called Clendinen from her car
to lodge a complaint. Around 7:30 a.m. on the same day, Bailey
saw Taylor-Monachino walking toward her in the office; Bailey
felt so intimidated and threatened from the earlier interaction
that she immediately walked away from Taylor-Monachino and
sat with the front desk personnel until more staff arrived at the
office.
At that time, Bailey also reported to Clendinen that she
felt threatened and intimidated by Taylor-Monachino since

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
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March 23. Bailey specified that Taylor-Monachino formally
greeted other staff but did not acknowledge her; walked by
Bailey chuckling to herself; and made comments suggesting
Bailey’s workers’ compensation filings were not “real issues.”
Bailey stated she no longer walked past Taylor-Monachino’s
office and would change her route if she saw Taylor-Monachino
walking in the same direction. Bailey described feeling as if she
had “nowhere to go.” Bailey’s August 12 report was the first
time she brought the issue of Taylor-Monachino’s behavior to
Clendinen’s attention. Shortly thereafter, on August 20,
Bailey’s psychiatrist provided a letter indicating that Bailey was
being treated for severe anxiety and depression that developed
as a result of workplace stress.
DHR investigated certain allegations against Taylor-
Monachino in August 2015, including Bailey’s allegation about
the incident on August 12. On October 27, Clendinen sent
Bailey a letter summarizing the investigation into her
allegation. The letter stated that an outside investigator
deemed the allegations “not-sustained,” meaning “the alleged
misconduct could neither be proved nor disproved, given the
existing evidence.” The investigation concluded, however, that
Taylor-Monachino violated city policies regarding the treatment
of coworkers and the public based on a separate incident
involving Mark that occurred in the parking lot on August 13.
Around this time, the District Attorney’s Office issued an office-
wide letter announcing the creation of a new HR position, senior
personnel analyst. The letter advised that various HR duties,
including “[e]mployee complaints/discipline” were being
reassigned from Taylor-Monachino to the senior personnel
analyst.

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Clendinen met with Bailey on November 9. During this
meeting, Bailey informed Clendinen that she was not
comfortable covering for Larkin. Following that meeting, as
part of the office’s periodic rotations for investigative assistants,
Clendinen approved Larkin’s transfer from the records room to
another division on a different floor. Clendinen later testified
that, despite 10 months having passed since the incident with
Larkin, Bailey was still visibly upset at work, which informed
his decision to separate the two. Clendinen testified that Bailey
had come to his office crying on a few occasions in 2015. On
December 16, Bailey requested a six-week leave of absence
based on her psychiatrist’s recommendation that she needed
time off due to “severe workplace stress.” The District
Attorney’s Office approved that request.
On December 30, Bailey filed suit against the City for
racial discrimination, racial harassment, retaliation, and failure
to prevent discrimination in violation of FEHA. The City moved
for summary judgment and the trial court granted that motion.
The parties agreed the two primary issues for determination
were: (1) whether Bailey could establish a triable issue that
there was severe or pervasive racial harassment based on the
single allegation that her coworker called her the N-word; and
(2) whether Bailey could establish a triable issue that she was
subjected to an adverse employment action.
Addressing the first issue, the trial court found that the
only race-related allegation in the lawsuit was Larkin saying
“You [N-words] is so scary.” The trial court noted that Bailey
conceded this was the only race-related allegation at issue. To
the extent counsel attempted to argue at the hearing that
Taylor-Monachino’s actions were also race-related, the trial
court rejected this argument on the ground that it contradicted

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
11
Bailey’s response to the City’s separate statement and her own
deposition testimony. The trial court concluded that no trier of
fact could find severe or pervasive racial harassment based on
being “called a ‘[N-word]’ by a co-worker on one occasion.”
Addressing the second issue, the trial court reasoned that
Bailey’s 2015 performance review was not an adverse
employment action because Bailey presented no evidence
showing it could lead to a substantial and material change in
the terms and conditions of her employment. Additionally, the
trial court noted that, to the extent Bailey relied on Taylor-
Monachino’s alleged misconduct, an allegation of “social
ostracism at the hands of co-workers does not amount to an
adverse employment action.” Consequently, the trial court
found Bailey could not prevail on her retaliation claim.
In an unpublished opinion, the Court of Appeal affirmed
the trial court’s grant of summary judgment. We granted
review.
II. DISCUSSION
FEHA recognizes that freedom from employment
discrimination on specified grounds, including race, is a civil
right. (§ 12921, subd. (a).) As a matter of public policy, FEHA
declares the need to “protect and safeguard the right and
opportunity of all persons to seek, obtain, and hold employment
without discrimination or abridgment on account of race . . . .”
(§ 12920.) “This court has declared that policy to be
‘fundamental.’ ” (Brown v. Superior Court (1984) 37 Cal.3d 477,
485.) The express purpose of FEHA is to provide effective
remedies that will eliminate discriminatory practices in the
workplace (§ 12920), and its provisions “are to be construed

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
12
broadly and liberally” to accomplish that purpose. (Yanowitz,
supra, 36 Cal.4th at p. 1054, fn. 14.)
To that end, FEHA makes it unlawful, subject to certain
exceptions not implicated here, for an employer to
“discriminate” against an employee “in compensation or in
terms, conditions, or privileges of employment” or to “harass” an
employee “because of race.” (§ 12940, subds. (a), (j)(1).) It is also
unlawful for an employer to “discharge, expel, or otherwise
discriminate against” an employee because they have opposed
practices forbidden under FEHA or filed a complaint, testified,
or assisted in any proceeding under FEHA. (§ 12940, subd. (h).)
In interpreting these provisions, California courts often
look for guidance in decisions construing federal
antidiscrimination laws, including title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII). (Raines v. U.S.
Healthworks Medical Group (2023) 15 Cal.5th 268, 282.) This
is because the antidiscrimination objectives and relevant
wording of Title VII are similar to those of FEHA. (Reno v.
Baird (1998) 18 Cal.4th 640, 647–648.) Where FEHA and Title
VII differ, however, the weight of federal precedents diminishes.
(State Dept. of Health Services v. Superior Court (2003) 31
Cal.4th 1026, 1040.) And even as we look to federal authority,
we are mindful that FEHA is a state law and we conduct an
“independent analysis” of its provisions “using state law
principles.” (Ibid.) With these tenets in mind, we turn to
Bailey’s harassment and retaliation claims.
A. Unlawful Harassment Under FEHA
It is an unlawful employment practice for an employer to
“harass” an employee based on membership in a protected class,
including “because of race.” (§ 12940, subd. (j)(1).) “Harassment

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
13
of an employee . . . by an employee, other than an agent or
supervisor, shall be unlawful if the entity, or its agents or
supervisors, knows or should have known of this conduct and
fails to take immediate and appropriate corrective action.”
(Ibid.) Harassment includes “[v]erbal harassment” such as
“epithets, derogatory comments or slurs on a basis enumerated
in the Act” (Cal. Code Regs., tit. 2, § 11019, subd. (b)(2)(A)); it
also includes “[p]hysical” and “[v]isual forms of harassment”
(id., subd. (b)(2)(B), (C)).
To prevail on a claim that a workplace is racially hostile
under FEHA, an employee must show she was subjected to
harassing conduct that was (1) unwelcome; (2) because of race;
and (3) sufficiently severe or pervasive to alter the conditions of
her employment and create an abusive work environment. (See
Lyle v. Warner Brothers Television Productions (2006) 38
Cal.4th 264, 279 [setting out prima facie requirements for
sexual harassment claims under FEHA]; Boyer-Liberto v.
Fontainebleau Corp. (4th Cir. 2015) 786 F.3d 264, 277 (Boyer-
Liberto) [setting out prima facie requirements for racial
harassment claims under Title VII].) In addition, she must
establish that the offending conduct was imputable to her
employer. (Lyle, at p. 279; Boyer-Liberto, at p. 277.) The parties
here do not dispute that Larkin’s conduct was unwelcome and
because of race.4 We therefore turn to consider its severity and
the City’s liability.
4 In granting the City’s motion for summary judgment, the
trial court refused to consider the argument that Taylor-
Monachino’s conduct also constituted actionable harassment,
finding it contradicted Bailey’s own deposition testimony that

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
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1. Severe or Pervasive
Unlike FEHA discrimination claims, which address only
explicit changes in the “terms, conditions, or privileges of
employment” (§ 12940, subd. (a)), harassment claims focus on
“situations in which the social environment of the workplace
becomes intolerable because the harassment (whether verbal,
physical, or visual) communicates an offensive message to the
harassed employee.” (Roby v. McKesson Corp. (2009) 47 Cal.4th
686, 706 (Roby).) In other words, “discrimination refers to bias
in the exercise of official actions on behalf of the employer”
whereas “harassment refers to bias that is expressed or
communicated through interpersonal relations in the
workplace.” (Id. at p. 707.) “Because a harasser need not
exercise delegated power on behalf of the employer to
communicate an offensive message,” harassment claims may be
predicated on conduct by supervisors and coworkers alike. (Id.
at pp. 706–707 [noting “it does not matter for purposes of
proving harassment whether the harasser is the president of the
company or an entry-level clerk”].)
The standard for workplace harassment claims strikes a
“middle path between making actionable any conduct that is
merely offensive and requiring the conduct to cause a tangible
psychological injury.” (Harris v. Forklift Systems, Inc. (1993)
510 U.S. 17, 21 (Harris).) The United States Supreme Court has
Taylor-Monachino’s conduct was not based on her race. Bailey
did not renew this argument on appeal, and the question
presented to this Court is whether Larkin’s conduct on its own
constitutes actionable harassment. We adopt the parties’
framing of Bailey’s harassment claim and do not consider
whether Taylor-Monachino’s acts, taken in response to Bailey’s
complaint of racial harassment, were “because of race.”

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held: “Conduct that is not severe or pervasive enough to create
an objectively hostile or abusive work environment — an
environment that a reasonable person would find hostile or
abusive — is beyond Title VII’s purview.” (Id. at p. 21.) “But
Title VII comes into play before the harassing conduct leads to
a nervous breakdown. A discriminatorily abusive work
environment, even one that does not seriously affect employees’
psychological well-being, can and often will detract from
employees’ job performance, discourage employees from
remaining on the job, or keep them from advancing in their
careers.” (Id. at p. 22.) The same standard applies to FEHA.
(See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th
121, 130 (plur. opn. of George, C. J.) (Aguilar); Miller, supra, 36
Cal.4th at p. 462.)
Whether a work environment is reasonably perceived as
hostile or abusive “is not, and by its nature cannot be, a
mathematically precise test.” (Harris, supra, 510 U.S. at p. 22.)
“The working environment must be evaluated in light of the
totality of the circumstances.” (Miller, supra, 36 Cal.4th at
p. 462, citing Harris, at p. 23.) “ ‘These may include the
frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.’ ” (Miller, at p. 462, quoting
Harris, at p. 23.) “ ‘The required level of severity or seriousness
varies inversely with the pervasiveness or frequency of the
conduct.’ ” (Reynaga v. Roseburg Forest Products (9th Cir. 2017)
847 F.3d 678, 687 (Reynaga).) “ ‘[S]imple teasing, offhand
comments, and isolated incidents (unless extremely serious)’ ”
are not sufficient to create an actionable claim of harassment.

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(Id. at p. 687, quoting Faragher v. Boca Raton (1998) 524 U.S.
775, 788 (Faragher).)
Here, urging us to affirm the Court of Appeal’s holding,
the City argues that “[a] single race-based comment by a
coworker — even when involving a categorically offensive and
impermissible term — over a fourteen year period” can be
considered neither “pervasive” nor “severe.” According to the
City, Larkin’s use of a racial slur is not actionable because
Larkin “had no authority to direct or supervise Bailey or affect
the terms and conditions of her employment.” The comment was
“one ‘offensive utterance’ made in a private conversation
between two coworkers.” Bailey responds that, under prevailing
FEHA principles and standards, the Court of Appeal’s holding
“that a co-worker’s, as opposed to a supervisor’s, one-time
infliction of [a] slur is categorically non-actionable under
FEHA . . . is neither compelled nor warranted.” We agree with
Bailey that the Court of Appeal placed undue emphasis on the
speaker’s status as a coworker.
The objective severity of harassment should be judged
from the perspective of a reasonable person in the plaintiff’s
position. (Miller, supra, 36 Cal.4th at p. 462; Oncale v.
Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 78
(Oncale).) We acknowledge, as has the Ninth Circuit before us,
that “[r]acially motivated comments or actions may appear
innocent or only mildly offensive to one who is not a member of
the targeted group,” but “intolerably abusive or threatening
when understood from the perspective of a plaintiff who is a
member of the targeted group.” (McGinest v. GTE Service Corp.
(9th Cir. 2004) 360 F.3d 1103, 1116 (McGinest).) We must
therefore consider allegations of a racially hostile workplace
“from the perspective of a reasonable person belonging to the

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racial or ethnic group of the plaintiff.” (Id. at p. 1115; accord,
Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 264
(Nazir).) This allows us to “recognize forms of discrimination
that are real and hurtful, and yet may be overlooked if
considered solely from the perspective of an adjudicator
belonging to a different group than the plaintiff.” (McGinest, at
p. 1116.)
Turning to the conduct at issue in this case — the one-time
use of a racial slur — we begin in a place of agreement with the
Court of Appeal: “a single racial epithet can be so offensive it
gives rise to a triable issue of actionable harassment.” (Bailey
v. San Francisco District Attorney’s Office (Sept. 16, 2020,
A153520) [nonpub. opn.], as mod. on denial of rehg. Oct. 6, 2020
(Bailey), citing Boyer-Liberto, supra, 786 F.3d at p. 264.) As
noted in Boyer-Liberto, although viable hostile work
environment claims often involve repeated conduct, it is not
required. (Boyer-Liberto, at p. 277.) The foundational high
court standard provides that actionable harassment must be
“ ‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working
environment.’ ” (Harris, supra, 510 U.S. at p. 21, italics added;
see also Ayissi-Etoh v. Fannie Mae (D.C. Cir. 2013) 712 F.3d 572,
579 (conc. opn. of Kavanaugh, J.) (Ayissi-Etoh) [“The test set
forth by the Supreme Court is whether the alleged conduct is
‘sufficiently severe or pervasive’ — written in the disjunctive —
not whether the conduct is ‘sufficiently severe and
pervasive.’ ”].) This standard allows that “an isolated incident
of harassment, if extremely serious, can create a hostile work
environment.” (Boyer-Liberto, at p. 268, citing Faragher, supra,
524 U.S. at p. 788; see U.S. Equal Employment Opportunity
Commission, Section 15: Race & Color Discrimination (Apr. 19,

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Opinion of the Court by Evans, J.
18
2006) 15-VII Equal Opportunity for Job Success, p. 15–37
(EEOC Compliance Manual) [“a single, extremely serious
incident of harassment may be sufficient to constitute a Title
VII violation”]; ibid. [“The more severe the harassment, the less
pervasive it needs to be, and vice versa”].)5
Identifying the types of isolated incidents that may create
a hostile work environment depending on the totality of the
circumstances, courts have recognized that use of “an
unambiguous racial epithet such as the ‘N-word’ ” may suffice.
(EEOC Compliance Manual, supra, at p. 15–37 & fn. 130, citing
Spriggs v. Diamond Auto Glass (4th Cir. 2001) 242 F.3d 179, 185
(Spriggs); see also Woods v. Cantrell (5th Cir. 2022) 29 F.4th
284, 285 (Woods) [holding the district court erred in dismissing
a hostile work environment claim based on “ ‘a single
utterance’ ” of an unambiguous racial epithet by a supervisor];
Boyer-Liberto, supra, 786 F.3d at pp. 280–281 [vacating
summary judgement on a hostile work environment claim and
5 In her briefing, Bailey cites section 12923 (added by
Stats. 2018, ch. 955, § 1, eff. Jan. 1, 2019) to elucidate the
standards governing claims of harassment, including the
proposition that “[a] single incident of harassing conduct is
sufficient to create a triable issue regarding the existence of a
hostile work environment if the harassing conduct has
unreasonably interfered with the plaintiff’s work performance
or created an intimidating, hostile, or offensive working
environment.” (§ 12923, subd. (b).) The City argues section
12923 is inapplicable because the Legislature’s declaration of a
long-enacted statute’s meaning is not controlling and, even if it
were, section 12923 does not apply retroactively. We find no
need to rely on section 12923 to resolve this case and thus have
no cause to address threshold issues regarding its applicability.
We note, however, that our holding today appears consistent
with section 12923.

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Opinion of the Court by Evans, J.
19
identifying the use of unambiguous racial epithets as the type of
conduct that, though isolated, may be severe]; Ayissi-Etoh,
supra, 712 F.3d at p. 577 (maj. opn.) [noting that, although other
potentially harassing conduct occurred, the “single incident” of
a supervisor using an unambiguous racial epithet against an
employee “might well have been sufficient to establish a hostile
work environment”]; id. at p. 580 (conc. opn. of Kavanaugh, J.)
[writing separately to express the view that “being called the n-
word by a supervisor . . . suffices by itself to establish a racially
hostile work environment”].)
In Boyer-Liberto, for example, the Fourth Circuit held that
a reasonable jury could find “two uses of the ‘porch monkey’
epithet — whether viewed as a single incident or as a pair of
discrete instances of harassment — were severe enough to
engender a hostile work environment.” (Boyer-Liberto, supra,
786 F.3d at p. 280.) The Fourth Circuit opined that the “chosen
slur” was “about as odious as the use of the ‘[N-word].’ ” (Ibid.)
“Far more than a ‘mere offensive utterance,’ the ‘[N-word]’ is
pure anathema to African-Americans.” (Spriggs, supra, 242
F.3d at p. 185.) “It is beyond question that the use of the ‘[N-
word]’ is highly offensive and demeaning, evoking a history of
racial violence, brutality, and subordination.” (McGinest, supra,
360 F.3d at p. 1116.) Indeed, the federal circuit courts have
observed that “[p]erhaps no single act can more quickly ‘alter
the conditions of employment and create an abusive working
environment,’ [citation], than the use of an unambiguously
racial epithet such as [the ‘N-word’] by a supervisor in the
presence of his subordinates.” (Rodgers v. Western-Southern
Life Ins. Co. (7th Cir. 1993) 12 F.3d 668, 675 (Rodgers); accord,
Woods, supra, 29 F.4th at p. 285 [5th Cir.]; Alston v. Town of
Brookline (1st Cir. 2021) 997 F.3d 23, 47; Lounds v. Lincare, Inc.

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Opinion of the Court by Evans, J.
20
(10th Cir. 2015) 812 F.3d 1208, 1230; Boyer-Liberto, supra, 786
F.3d at p. 280 [4th Cir.]; Ellis v. Houston (8th Cir. 2014) 742
F.3d 307, 325; Rivera v. Rochester Genesee Regional Transp.
Authority (2d Cir. 2014) 743 F.3d 11, 24; Ayissi-Etoh, supra, 712
F.3d at p. 577 [D.C. Cir.]; McGinest, supra, 360 F.3d at p. 1116
[9th Cir.].)
We join the chorus of other courts in acknowledging the
odious and injurious nature of the N-word in particular, as well
as other unambiguous racial epithets. (See Alcorn v. Anbro
Engineering, Inc. (1970) 2 Cal.3d 493, 498, fn. 4 [observing the
“particularly abusive and insulting” nature of the N-word]; see
also Eisenstadt, The N-Word at Work: Contextualizing
Language in the Workplace (2012) 33 Berkeley J. Emp. & Lab.
L. 299, 316 [the experience of being called the N-word is “ ‘like
receiving a slap in the face’ ”; the “ ‘injury is instantaneous’ ”].)
The N-word carries with it, not just the stab of present insult,
but the stinging barbs of history, which catch and tear at the
psyche the way thorns tear at the skin. (See McGinest, supra,
360 F.3d at p. 1116 [the N-word evokes “a history of racial
violence, brutality, and subordination”]; see also The N-Word at
Work, at p. 316 [“injurious words can cause immediate, severe
damage and actual injury because they carry historical
meaning — typically, a history of actual discrimination,
oppression, and violence”].) Far from “a mere offensive
utterance” (Harris, supra, 510 U.S. at p. 23), this slur may be
intrinsically “humiliating” depending on the totality of the
circumstances (ibid.).6
6 A plurality of this Court stated in Aguilar: “[A]lthough a
single use of a racial epithet, standing alone, would not create a

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
21
Though acknowledging that the isolated use of an
unambiguous racial epithet may give rise to a triable issue of
actionable harassment depending on the totality of the
circumstances, the Court of Appeal went on to draw a distinction
between the use of such language by a supervisor and the use of
such language by a coworker. (Bailey, supra, A153520.) The
Court of Appeal placed great emphasis on this distinction,
treating the status of the speaker as dispositive on this record
hostile work environment, once the jury had determined that a
pervasive pattern of such use had created a hostile work
environment, the trial court in this case did not abuse its
discretion in concluding that each additional instance would
perpetuate the hostile environment and should be enjoined.”
(Aguilar, supra, 21 Cal.4th at p. 147, fn. 9 (plur. opn. of George,
C. J.), italics added.) The severity of harassing conduct was not
at issue in Aguilar and the italicized statement is dictum.
“ ‘ “Language used in any opinion is of course to be understood
in the light of the facts and the issue then before the court, and
an opinion is not authority for a proposition not therein
considered.” ’ ” (Colmenares v. Braemar Country Club, Inc.
(2003) 29 Cal.4th 1019, 1029.)
Further, to the extent this statement from Aguilar has
been read to stand for the proposition that the isolated use of a
racial epithet cannot constitute actionable harassment, we
disapprove this reading. Harassing conduct is not considered
“standing alone” (Aguilar, supra, 21 Cal.4th at p. 146, fn. 9
(plur. opn. of George, C. J.)), but “in light of the totality of the
circumstances” (Miller, supra, 36 Cal.4th at p. 462, citing
Harris, supra, 510 U.S. at p. 23). The isolated use of an
unambiguous racial epithet may be sufficiently severe to create
a hostile work environment based on the totality of the
circumstances surrounding its use. In other words, it does not
require something more; rather, it requires full consideration of
the use of the epithet itself, including but not limited to the
specific word or words used, the speaker, whether it was
directed at the plaintiff, and the larger social context of the
workplace.

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Opinion of the Court by Evans, J.
22
and faulting Bailey for failing to cite any authority holding that
use of a racial epithet by a coworker created a hostile work
environment. (Ibid.) This is where we part ways with the Court
of Appeal. The cases cited above concerning isolated uses of
unambiguous racial epithets have involved supervisors.
Harassment claims are inherently fact specific, however, and
the sufficiency of allegations involving a supervisor does not
itself establish the insufficiency of allegations involving a
coworker. Nor does our FEHA precedent — which emphasizes
the need to consider the totality of the circumstances when
assessing the severity of harassment (Miller, supra, 36 Cal.4th
at p. 462) — support a rule based on this distinction. (See also
Oncale, supra, 523 U.S. at p. 81 [“the objective severity of
harassment should be judged from the perspective of a
reasonable person in the plaintiff’s position, considering ‘all the
circumstances’ ”].) As the high court has noted, “[t]he real social
impact of workplace behavior often depends on a constellation
of surrounding circumstances, expectations, and relationships
which are not fully captured by a simple recitation of the words
used or the physical acts performed.” (Id. at pp. 81–82.)
A closer look at one of the cases cited above helps
illuminate this point. In Boyer-Liberto, the Fourth Circuit noted
that the status of the harasser is indeed a factor in considering
both the severity of the harassing conduct and whether that
conduct is imputable to the employer. (Boyer-Liberto, supra, 786
F.3d at p. 278.) The court noted that there was a dispute as to
status of the speaker in that case, but that it need not, and in
fact could not on the record before it, determine whether the
speaker was “actually [the plaintiff’s] supervisor or simply her
co-worker, a fact relevant to the separate question of the
[employer’s] vicarious liability.” (Id. at p. 279.) The court went

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
23
on to deem the speaker a supervisor for purposes of “gauging the
severity of [her] conduct,” however, because the record
demonstrated that the plaintiff reasonably believed the speaker
could make a discharge decision or recommendation that would
be rubber-stamped by the actual supervisor. (Id. at p. 280; id.
at p. 279 [noting the speaker had previously communicated that
she had the supervisor’s ear and could get the plaintiff fired].)
Thus, it was not the speaker’s official classification that was
determinative, but rather, the “constellation of surrounding
circumstances, expectations, and relationships” (Oncale, supra,
523 U.S. at p. 82) that informed the court’s analysis.
To be sure, the status of the speaker may be a “significant
factor” in assessing the severity of harassing conduct. (Boyer-
Liberto, supra, 786 F.3d at p. 278 [noting that a supervisor’s
power and authority invests their harassing conduct with a
particular threatening character].) But it must be considered,
not as a defining element, but as part of the totality of the
circumstances. A rigid distinction between supervisors and
coworkers fails to take into account the full context of the
workplace. In some work environments, for example, an
employee may interact with their supervisor only rarely but be
required to work intimately with a coworker. Coworkers who
share a physical space, such as long-haul truckers driving a
route together, or whose work is closely intertwined, such as an
ER nurse working side-by-side with other care providers, might
find that harassment by such coworkers more quickly alters the
conditions of their employment than harassment by a
supervisor. It is of vital importance to consider the nature and
extent of coworkers’ interactions; a coworker whom one sees at
the water cooler is quite different than a coworker with whom
one shares an office space or work duties. A rigid distinction

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
24
between supervisors and coworkers may also ignore informal
workplace relationships; not all power appears on an
organizational chart. A coworker who holds the manager’s ear,
is given preferential treatment, or has special sway in the office
may have a unique ability to alter the conditions of others’
employment without having direct managerial authority.
Where a supervisor allows a harassing subordinate to act with
impunity or appears to ratify their conduct, this may imbue the
subordinate with a certain degree of authority to alter the
working conditions of their coworkers.
As the Seventh Circuit recently observed in a case
involving isolated use of the N-word by a coworker, case law
concerning the severity of harassment has distinguished
between supervisors and coworkers. (Paschall v. Tube
Processing Corporation (7th Cir. 2022) 28 F.4th 805, 814–815.)
It “has also, on occasion, been concerned with the number of
times a racial epithet was used.” (Id. at p. 815.) Yet there is no
question that conduct by coworkers may give rise to a claim of
harassment. (Roby, supra, 47 Cal.4th at pp. 706–707; see, e.g.,
Reynaga, supra, 847 F.3d at pp. 687–688 [reversing the district
court’s grant of summary judgment for the employer in a case
involving harassing conduct, including the use of racial epithets,
by a coworker].) Nor is there a magic number of slurs that
creates a hostile work environment. (Paschall, at p. 815 [“There
is, however, no spectrum when it comes to the use of a racial
epithet in the workplace”]; see, e.g., Woods, supra, 29 F.4th at
p. 285 [holding the district court erred in dismissing a hostile
work environment claim based on “ ‘a single utterance’ ” of an
unambiguous racial epithet by a supervisor].) “What matters is
looking to the totality of the circumstances when determining
whether the conduct is sufficiently severe or pervasive to be

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
25
actionable.” (Paschall, at p. 815 [declining to decide whether the
one-time use of the N-word by coworkers was actionable because
there was prompt and effective remedial action by the employer
and thus no liability].)
Applying these standards to the facts of this case, we
conclude there is a triable issue of fact whether Larkin’s one-
time use of the N-word was, under the totality of the
circumstances, sufficiently severe so as to create a hostile work
environment. We emphasize that, for purposes of summary
judgment, we view the evidence in the light most favorable to
Bailey, resolving any evidentiary doubts or ambiguities in her
favor, including as to the intent behind and impact of Larkin’s
use of a racial slur. (Elk Hills, supra, 57 Cal.4th at p. 606;
Wiener, supra, 32 Cal.4th at p. 1142; see also Nazir, supra, 178
Cal.App.4th at p. 286 [observing that issues of intent, motive,
and the social impact of workplace behavior often are not
determinable on paper].)7
This case involves an unambiguous racial epithet. “ ‘The
use of the “[N-word]” automatically separates the person
addressed from every non-black person; this is discrimination
per se.’ ” (Rodgers, supra, 12 F.3d at p. 675, quoting Bailey v.
Binyon (N.D.Ill. 1984) 583 F.Supp. 923, 927.) The word was
used only once; it was not overheard but directed specifically at
Bailey. Although it was not physically threatening, a jury could
find that use of the slur was “degrading and humiliating in the
7 Although we do not rely on section 12923, we note that
the Legislature has affirmed the decision in Nazir, supra, 178
Cal.App.4th 243 and “its observation that hostile working
environment cases involve issues ‘not determinable on paper.’ ”
(§ 12923, subd. (e).)

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
26
extreme.” (Spriggs, supra, 242 F.3d at p. 185.) A jury could also
find that the modifier “scary” further heightened the slur’s
impact. (State v. Liebenguth (2020) 336 Conn. 685, 706
[observing that modifiers may “intensify the already highly
offensive and demeaning character” of the N-word].) Bailey and
Larkin shared an office space. They also shared work duties and
were asked to cover each other’s desks. It was therefore not
possible for Bailey to distance herself — physically or
otherwise — from Larkin.
The record also shows Larkin had a close relationship with
Taylor-Monachino. Though it is subject to dispute and may
require further factual development at trial, the record could
support the view that Larkin acted with a certain degree of
impunity as a result of her relationship with Taylor-Monachino,
and thus had a degree of influence over Bailey’s working
conditions. There was some evidence that Larkin, through her
relationship with Taylor-Monachino, interfered with the
employment of two other African-American women, Mark and
Fisher. At a minimum, in deciding whether it was reasonable
for Bailey to have viewed Larkin as acting with a certain degree
of impunity in the office, a jury would be entitled to consider
Taylor-Monachino’s conduct after Bailey made her complaint —
conduct that corroborates Bailey’s stated fear of reporting
Larkin’s behavior. Finally, the record could support a finding
that Larkin’s use of a racial slur interfered with Bailey’s work
performance and it could reasonably be expected to do so.
Bailey’s psychiatrist provided a letter indicating she was being
treated for severe anxiety and depression that developed as a
result of workplace stress. Clendinen acknowledged that Bailey
had come to his office crying on a few occasions in 2015 and that
she was still visibly upset some 10 months later. To the extent

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
27
there is uncertainty regarding whether Bailey’s performance
was impacted by Larkin’s use of a racial slur, Taylor-
Monachino’s subsequent conduct, or both, ultimately that is a
question appropriate for the trier of fact.
2. Corrective Action
Because Bailey raises a genuine issue of material fact
regarding the severity of the harassment, we next consider
whether that conduct is imputable to the City. “When the
harasser is a supervisor, the employer is strictly liable for the
supervisor’s actions.” (Roby, supra, 47 Cal.4th at p. 707.) “When
the harasser is a nonsupervisory employee, employer liability
turns on a showing of negligence . . . .” (Ibid.) Specifically,
“[h]arassment of an employee . . . by an employee, other than an
agent or supervisor, shall be unlawful if the entity, or its agents
or supervisors, knows or should have known of this conduct and
fails to take immediate and appropriate corrective action.”
(§ 12940, subd. (j)(1).)
We have not previously had occasion to evaluate whether
an employer’s response to harassment constitutes “immediate
and appropriate corrective action.” (§ 12940, subd. (j)(1).) In the
analogous context of Title VII claims, the federal courts ask
whether an employer has taken “ ‘adequate remedial
measures’ ” that are “ ‘ “reasonably calculated to end the
harassment.” ’ ” (Nichols v. Azteca Restaurant Enterprises, Inc.
(9th Cir. 2001) 256 F.3d 864, 875.) The reasonableness of the
remedy depends on its ability to stop the current harassment
and deter future harassment. (Ibid.) Our state appellate courts
have applied this same standard in assessing claims arising
under FEHA. (Bradley v. Department of Corrections &
Rehabilitation (2008) 158 Cal.App.4th 1612, 1630.)

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
28
As an initial matter, the parties dispute the significance of
Taylor-Monachino’s conduct. Bailey argues that Taylor-
Monachino’s course of conduct was antithetical to her duty as
the HR manager and functioned as ratification of Larkin’s use
of a racial slur. The City responds that Taylor-Monachino’s
conduct is largely irrelevant to the inquiry of whether
appropriate corrective action was taken because the City took
steps to end the racial harassment by Larkin and Taylor-
Monachino’s conduct “was not based on Bailey’s race.” The
Court of Appeal adopted the City’s view, noting that “Taylor-
Monachino’s conduct was not motivated by any racial animus,”
and therefore, Bailey could not “look to Taylor-Monachino’s
conduct as purported ratification of Larkin’s alleged racial slur.”
(Bailey, supra, A153520.)
We conclude the Court of Appeal erred in dismissing the
role Taylor-Monachino played in the City’s overall response to
Bailey’s complaint. FEHA establishes a negligence standard for
determining whether an employer is liable for harassment by a
nonsupervisory employee. (Roby, supra, 47 Cal.4th at p. 707.)
Intent is not an element of negligence. Accordingly, the City
may face liability regardless of Taylor-Monachino’s motives.
Even if we do not consider Taylor-Monachino’s conduct as
evidence of further racial harassment in the workplace (as
opposed to retaliatory harassment), Taylor-Monachino’s
conduct was part of the City’s response to Larkin’s use of a racial
slur and should inform any analysis of whether that response
was immediate and appropriate. Indeed, Taylor-Monachino was
the person charged with receiving complaints of harassment in
the workplace. As described below with respect to Bailey’s
retaliation claim, there is evidence to suggest that Taylor-
Monachino sought to convey that complaints of harassment

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
29
would not be taken seriously and actively undermined the
remedial efforts of others from her position of authority.
As stated above, the Court of Appeal did not consider that
evidence regarding Taylor-Monachino’s conduct in assessing the
City’s potential liability. The Court of Appeal also purported to
“agree with the trial court” that there was no triable issue
regarding the City’s liability (Bailey, supra, A153520), even
though the matter of immediate and appropriate corrective
action was barely briefed in the City’s motion for summary
judgment and the trial court did not address it. In view of the
foregoing, we find it appropriate to remand the matter to the
Court of Appeal with directions to reconsider the issue of the
City’s liability for harassment in light of this opinion.
B. Retaliation
It is unlawful for an employer to “discharge, expel, or
otherwise discriminate against any person because the person
has opposed any practices forbidden under this part or because
the person has filed a complaint, testified, or assisted in any
proceeding under this part.” (§ 12940, subd. (h).) This type of
unlawful employment practice is known simply as “retaliation.”
(See Yanowitz, supra, 36 Cal.4th at p. 1042.) To establish a
prima facie case of retaliation under FEHA, an employee must
show that (1) she engaged in a “protected activity,” (2) the
employer subjected her to an adverse employment action, and
(3) a causal link existed between the protected activity and the
employer’s action. (Ibid.)
It is undisputed Bailey engaged in protected activity when
she reported Larkin’s use of a racial slur. This was activity for
which she could not be subject to retaliation. The City moved
for and obtained summary judgment, however, on the ground

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
30
that Bailey suffered no adverse employment action. The parties
and the courts below analyzed this element with respect to two
alleged retaliatory acts or series of acts: Taylor-Monachino’s
“ ‘course of conduct’ ” and comments on Bailey’s June 2015
performance review. (Bailey, supra, A153520.) The Court of
Appeal agreed with the City that neither rose to the level of an
adverse employment action. (Ibid.) Bailey contends this
holding ignores our precedent regarding the breadth of conduct
that may constitute an actionable adverse employment action,
as well as the mandate that such conduct be considered
collectively and in context. We agree.
The phrase “adverse employment action” does not appear
in FEHA but “has become a familiar shorthand expression
referring to the kind, nature, or degree of adverse action against
an employee that will support a cause of action under a relevant
provision of an employment discrimination statute.” (Yanowitz,
supra, 36 Cal.4th at p. 1049.) We have held that the language
of section 12940, subdivision (h) — making it unlawful to
“discharge, expel, or otherwise discriminate against” an
employee — refers to and encompasses the same forms of
adverse employment actions that are actionable in FEHA
discrimination claims under section 12940, subdivision (a).
(Yanowitz, at pp. 1050–1051.) Thus, for both discrimination and
retaliation claims, an adverse employment action is one that
“materially affects the terms, conditions, or privileges of
employment.” (Id. at p. 1051.)8
8 The parties apply the so-called “materiality” standard that
this court adopted in Yanowitz, supra, 36 Cal.4th at pp. 1036,
1049–1051. Shortly after Yanowitz was decided, the United

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Opinion of the Court by Evans, J.
31
Although “a mere offensive utterance or even a pattern of
social slights by either the employer or coemployees” is not
actionable, “the phrase ‘terms, conditions, or privileges’ of
employment must be interpreted liberally and with a reasonable
appreciation of the realities of the workplace in order to afford
employees the appropriate and generous protection against
employment discrimination that the FEHA was intended to
provide.” (Yanowitz, supra, 36 Cal.4th at p. 1054.) “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 . . . .” (Id. at p. 1054.) But adverse treatment that is
reasonably likely to impair an employee’s job performance or
prospects for advancement in their career falls within the reach
of FEHA’s antiretaliation provision. (Id. at pp. 1054–1055.)
We have recognized that “[r]etaliation claims are
inherently fact-specific, and the impact of an employer’s action
in a particular case must be evaluated in context,” considering
“the unique circumstances of the affected employee as well as
the workplace context of the claim.” (Yanowitz, supra, 36
Cal.4th at p. 1052.) “[T]he significance of particular types of
adverse actions must be evaluated by taking into account the
legitimate interests of both the employer and the employee.”
(Id. at p. 1054.) Additionally, the alleged retaliatory acts are to
States Supreme Court rejected that standard (Burlington N. &
S. F. R. Co. v. White (2006) 548 U.S. 53, 60, 67) in favor of a more
expansive “dissuasion” standard for retaliation claims brought
under Title VII (id. at pp. 57, 67–68). Neither Bailey nor the
City asks us to reconsider Yanowitz in light of Burlington.

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
32
be considered “collectively,” rather than individually. (Id. at
pp. 1055–1056.) Retaliatory acts may take the form of “a series
of subtle, yet damaging, injuries,” and “[e]nforcing a
requirement that each act separately constitute an adverse
employment action would subvert the purpose and intent of the
statute.” (Ibid.)
Bailey argues she encountered a pattern of systemic
retaliation in response to her complaint against Larkin. This
pattern of retaliation includes: (1) Taylor-Monachino’s
obstruction of the investigation into Bailey’s harassment claim
by failing to submit a formal complaint on January 29 and
refusing to do so again on March 23; (2) Taylor-Monachino’s
chastising of Bailey for recounting the January 22 incident to
other employees and threatening Bailey with liability for
harassing Larkin; (3) Taylor-Monachino’s refusal to separate
Larkin and Bailey after the January 22 incident; (4) Taylor-
Monachino’s hostility toward Bailey after their March 23
meeting, which included ignoring her, laughing at her, staring
at her, jeering at her, and once mouthing the words “you are
going to get it” to her; (5) the requirement that Bailey cover
Larkin’s work; and (6) the inclusion of negative comments in
Bailey’s 2015 performance review. Focusing largely on Taylor-
Monachino’s conduct, Bailey contends the department
personnel officer abused her managerial authority to sabotage
Bailey’s complaint, punish Bailey, and protect Larkin.
In analyzing Taylor-Monachino’s conduct, the Court of
Appeal recited our precedent regarding what kinds of acts, such
as “ ‘[a] mere offensive utterance or even a pattern of social
slights,’ ” fall short of constituting an adverse employment
action. (Bailey, supra, A153520, quoting Yanowitz, supra, 36
Cal.4th at p. 1054.) The Court of Appeal then stated that,

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
33
“[u]nder these standards, Taylor-Monachino’s ‘course of conduct’
does not rise to the level of an adverse employment action.”
(Bailey, supra, A153520.) This rather scant discussion does not
demonstrate that the court gave adequate weight to Taylor-
Monachino’s actions in light of the totality of the circumstances.
(See Yanowitz, at p. 1052.) Specifically, it reveals a failure to
appreciate the nature of this conduct by this particular actor in
the context of this workplace. Considering Bailey’s allegations
collectively and in view of the unique circumstances of the
affected employee and the workplace context of her claims, we
conclude that a reasonable trier of fact could find Taylor-
Monachino’s acts constituted a course of conduct that rises to
the level of an adverse employment action.
It is important to keep in mind both Taylor-Monachino’s
role in the workplace and the fact that her course of conduct
began with the obstruction of Bailey’s complaint. In violation of
policy, Taylor-Monachino did not prepare a complaint on
January 29 when Bailey first reported the incident with Larkin.
More critically, she then expressly refused to do so on March 23
when Bailey requested that a complaint be filed. Taylor-
Monachino instead chastised Bailey for having told other
employees about the incident with Larkin and threatened that,
by doing so, Bailey could create a hostile work environment for
Larkin, the person reported to have used a racial slur.
Following Bailey and Taylor-Monachino’s meeting on March 23,
when it became apparent that Bailey was not prepared to drop
the matter, Taylor-Monachino became openly hostile toward
Bailey, ridiculing and rebuffing her, in turns. Although
ignoring, laughing at, and/or staring at Bailey might be
considered mere social slights or ostracism in isolation,
considered together and along with Taylor-Monachino’s role, her

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
34
treatment of Bailey’s complaint, and her other conduct, they
take on a different import. The hostility culminated in a
confrontation on August 12, when Taylor-Monachino gestured
at Bailey and mouthed the words “you’re going to get it.” The
confrontation on August 12 may reasonably be interpreted as a
threat, particularly given Bailey’s awareness that other
employees had been reassigned or separated from the office
following issues with Larkin and her understanding that
Taylor-Monachino played a part in those outcomes.
Critically, this course of conduct was undertaken, not by a
coworker, but by the human resources manager responsible for
receiving complaints of harassment and discrimination in the
workplace. It bears repeating that the opportunity to seek,
obtain, and hold employment without discrimination because of
race is a civil right. (§ 12921, subd. (a).) A reasonable trier of
fact could find that Taylor-Monachino’s course of conduct, in
light of her position, effectively sought to withdraw Bailey’s
means of reporting and addressing workplace discrimination
and harassment. This is not a “[m]inor or relatively trivial”
action that does no more than anger or upset the affected
employee. (Yanowitz, supra, 36 Cal. 4th at p. 1054.) Rather, the
withdrawal of an employee’s right to avail themselves of the HR
process typically available to other employees materially affects
the “terms, conditions, or privileges” of their employment. (Id.
at p. 1054; see id. at pp. 1060–1061, citing Wyatt v. City of
Boston (1st Cir. 1994) 35 F.3d 13, 15–16 [identifying actions
covered by Title VII’s antiretaliation provision to include the
toleration of harassment by other employees].) Such treatment
is reasonably likely to impair the affected employee’s job
performance insofar as it leaves them unprotected from the very
harms FEHA was designed to eliminate. Pointed threats

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
35
compounded the harm of Taylor-Monachino’s conduct. (See
Patane v. Clark (2d Cir. 2007) 508 F.3d 106, 116 (Patane) [“Any
reasonable employee that believed that her employers would
engage in a concerted effort to drive her from her job if she
engaged in Title VII protected activity would think twice about
doing so”]; cf. Yanowitz, at p. 1060 [“actions that threaten to
derail an employee’s career are objectively adverse”].)
To be clear, our opinion today does not hold that an
employer’s mere inaction (e.g., the failure to investigate a claim
of racial harassment or take corrective action) — which
separately may bear on the employer’s liability for the
harassment itself — constitutes an act of retaliation. Had the
City merely failed to further investigate Larkin’s alleged
harassment following Bailey’s report of the same on January 29,
no actionable retaliation would appear. The instant claim of
retaliation, however, is not based on mere inaction. It is based
on an HR manager’s purposeful obstruction of Bailey’s
complaint, which included an admonition that Bailey might
create a hostile work environment for her harasser if she
persisted. And it is based on Taylor-Monachino’s escalating
threats in August, when she mouthed the words, “you are going
to get it.” Though ultimately it is for a jury to decide whether
Taylor-Monachino’s conduct rises to the level of an adverse
employment action in this case, such conduct could be
understood as quintessentially retaliatory. That is, it appears
designed to punish Bailey for engaging in protected activity (i.e.,
pursuing her complaint of harassment) and threatens further
punishment should she persist. Where a supervisor or other
person of authority obstructs and threatens to punish a
reporting employee if she persists in bringing a complaint to

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
36
higher level officials, such acts may be considered by a jury to
constitute actionable retaliation.
The City’s response to the retaliation claim confirms that
there exists a triable issue of fact. The City argues snubs or
social slights in the workplace are not actionable. As discussed
above, however, Bailey has shown more than mere impolite
behavior. The City further argues that Taylor-Monachino’s
obstruction of Bailey’s complaint “is not actionable” because a
complaint “was in fact submitted to the City’s DHR.” The
incident with Larkin occurred in January and a complaint was
not filed with DHR until April; Bailey provides evidence that, in
the meantime, Taylor-Monachino obstructed the filing of a
complaint. Whether the eventual filing of a complaint with
DHR impacts the retaliatory effect of Taylor-Monachino’s
conduct is a question for the trier of fact. (See Patane, supra,
508 F.3d at p. 116 [characterizing a similar argument as
“entirely unconvincing, since it would require that no plaintiff
who makes a second complaint about harassment could ever
have been retaliated against for an earlier complaint”].) The
City also characterizes Taylor-Monachino’s threat on August 12
as “empty.” That too is a question for a jury. Given that this
threat followed shortly on the heels of DHR issuing a letter
declining to investigate Bailey’s complaint against Larkin and
Taylor-Monachino, a jury might find that Taylor-Monachino had
(or believed she had) greater license to target Bailey at that
time. Bailey stated she was aware that other employees had
been reassigned or separated from the office following incidents
with Larkin, and Bailey attributed these outcomes, at least in
part, to Taylor-Monachino’s influence. Mark had previously
worked in the records room with Bailey and Larkin but was
reassigned after complaints from Larkin. Indeed, it was Bailey’s

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
37
knowledge about these other employees that caused her initial
reluctance to report the incident with Larkin on January 22. Of
course, we express no view as to what a trier of fact will or
should conclude about this evidence; we hold, however, that it is
sufficient to survive summary judgment and put the matter of
whether Bailey suffered an adverse employment action to a
jury.9
III. DISPOSITION
For the reasons stated above, we conclude that an isolated
act of harassment is actionable if it is sufficiently severe under
the totality of the circumstances, and that a coworker’s use of an
unambiguous racial epithet, such as the N-word, may be found
to suffice. Applying this standard, there exists a triable issue of
fact whether the harassing conduct at issue here was
sufficiently severe so as to alter the conditions of Bailey’s
employment. As to the matter of the City’s liability for the
harassment, the Court of Appeal erred in failing to consider the
effect of Taylor-Monachino’s conduct. We find it appropriate to
remand the matter to the Court of Appeal for reconsideration of
that issue in light of this opinion. We further conclude that
there exists a triable issue of fact whether Taylor-Monachino’s
course of conduct adversely affected the terms and conditions of
9 The City argues that Bailey’s June 2015 performance
review does not constitute an adverse employment action, and,
even if it did, there is no causal link between negative feedback
provided as part of that review and Bailey’s complaint. Because
we conclude that Bailey’s claim of retaliation survives summary
judgment based on Taylor-Monachino’s course of conduct, we
need not consider the matter of her performance review. For
purposes of summary judgment, it was undisputed that Taylor-
Monachino’s conduct towards Bailey was in retaliation for
Bailey’s complaint against Larkin.

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BAILEY v. SAN FRANCISCO DISTRICT ATTORNEY’S OFFICE
Opinion of the Court by Evans, J.
38
Bailey’s employment by, among other things, withdrawing
Bailey’s right to avail herself of the human resources process
available to other employees. We therefore reverse the
judgment of the Court of Appeal and remand the cause to that
court for further proceedings consistent with this opinion.10
EVANS, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
10 The trial court granted summary judgment in favor of the
City on Bailey’s claims for discrimination and failure to prevent
discrimination, reasoning these claims were entirely dependent
on her claims for harassment and retaliation. The Court of
Appeal did not address the dependent claims. In their briefing
before this Court, the parties dispute whether reversal of the
Court of Appeal’s judgment revives the discrimination and
failure to prevent discrimination claims. As it was neither
addressed by the Court of Appeal below nor presented as an
issue for our review, we decline to address the matter in the first
instance. The parties may raise the matter before the Court of
Appeal on remand.

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See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Bailey v. San Francisco District Attorney’s Office
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 9/16/20 – 1st Dist.,
Div. 1
Rehearing Granted
__________________________________________________________
Opinion No. S265223
Date Filed: July 29, 2024
__________________________________________________________
Court: Superior
County: San Francisco
Judge: Harold E. Kahn
__________________________________________________________
Counsel:
Law Offices of Daniel Ray Bacon, Daniel Ray Bacon; and Robert L.
Rusky for Plaintiff and Appellant.
Stacy Villalobos and Christopher Ho for Legal Aid at Work, ACLU
Foundation of Northern California, Bet Tzedek Legal Services, Center
for Workers’ Rights, Earthlodge Center for Transformation, Equal
Justice Society, Impact Fund, Maintenance Cooperation Trust Fund,
National Employment Law Project and Worksafe as Amici Curiae on
behalf of Plaintiff and Appellant.
Dennis J. Herrera and David Chiu, City Attorneys, Katharine Hobin
Porter and Jonathan Rolnick, Chief Deputy City Attorneys, Boris
Reznikov, Neha Gupta and Tara M. Steeley, Deputy City Attorneys,
for Defendants and Respondents.
Renne Public Law Group, Arthur A. Hartinger, Ryan P. McGinley-
Stempel and Anastasia Bondarchuk for California State Association of

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Counties and League of California Cities as Amici Curiae on behalf of
Defendants and Respondents.
Horvitz & Levy, Bradley S. Pauley and Eric S. Boorstin for the
Association of Southern California Defense Counsel as Amicus Curiae
on behalf of Defendants and Respondents.

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Counsel who argued in Supreme Court (not intended for
publication with opinion):
Daniel Ray Bacon
Law Offices of Daniel Ray Bacon
569 Hayes Street, Suite One
San Francisco, CA 94102
(415) 864-0907
Stacy Villalobos
Legal Aid at Work
180 Montgomery Street, Suite 600
San Francisco, CA 94104
(415) 593-0140
Tara M. Steeley
Deputy City Attorney
1 Dr. Carlton B. Goodlett Place
City Hall, Room 234
San Francisco, CA 94102
(415) 554-4655

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