Full opinion text
ORDER GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (DOC. 23) SNYDER, United States Magistrate Judge. Plaintiff is proceeding with a civil action in this Court. The matter has been referred to the Magistrate Judge for all proceedings, including the entry of final judgment, pursuant to 28 U.S.C. § 636(c), Fed. R.Civ.P. 73(b), and Local Rule 73-301. I. Background By stipulated order dated October 26, 2004, Judge Wanger granted Defendant Ray Heid’s motion to dismiss the first claim for relief alleging a violation of Title VII against him because the Ninth Circuit had ruled that supervisors and co-workers who are not otherwise employers may not be individually liable for Title VII violations, subject to the Ninth Circuit’s reversing its ruling before judgment is entered in this case. Judge Wanger also granted the motion of Defendant Los Banos Unified School District (LB), a public school district and employer, to dismiss the second claim for relief against it (a claim pursuant to California’s Fair Employment and Housing Act) because the district had Eleventh Amendment immunity. Thus, the first amended complaint (FAC) filed on October 4, 2004, alleges 1) in the first claim a violation of Title VII against LB and its Governing Board; and 2) in the second claim a violation of the California Fair Employment and Housing Act (FEHA), Cal. GovtCode §§ 12940 et seq., against Defendant Heid only. More specifically, it is alleged in the FAC: 1) Defendants failed to take adequate action in connection with Plaintiff’s informal internal complaints,- lodged before March 24, 2003, of sexually offensive conduct by Defendant Heid, and Defendants retaliated against her by supervising her work more closely, giving her an unwarranted adverse employment evaluation, engaging in conduct intended to ridicule and embarrass her,''and continuing to engage in sexually offensive conduct; 2) Defendant .. Heid discriminated against Plaintiff, a female employee whom he supervised, on the basis of sex by subjecting her to a continuing pattern of conduct creating a sexually hostile work environment, most recently manifested in May 30, 2003, when he made sexually suggestive comments and gestures' to Plaintiff; and 3) Defendant LB, the employer, denied that sexual harassment occurred and failed to take appropriate action to remedy the effects of the discriminatory treatment that had been the basis of Plaintiffs formal complaints. (FAC at 4-5.) The complaint alleges that LB and the Governing Board engaged in discrimination because of sex in violation of 42 U.S.C. § 2000e-2(a), retaliation for Plaintiffs opposing unlawful discrimination in violation of § 2000e-3, and inadequate corrective action because of a failure to take all reasonable steps to prevent harassment of Plaintiff. (FAC at 5-6.) She alleged that Defendant Heid and the Governing Board of LB engaged in discrimination because of sex in violation of Cal. Govt.Code § 12940(a), retaliation in violation of Cal. GovhCode § 12940(h), and inadequate corrective action by failing to take all reasonable steps to prevent harassment in violation of Cal. Govt.Code § 12940©. (FAC at 5-6.) Plaintiff seeks compensatory damages for mental and physical injury, general damages, punitive damages, costs, and attorney’s fees. (FAC at 7.) Defendants answered the FAC on November 17, 2004, admitting jurisdiction, venue, employment status, Defendant Heid’s supervisory position, the allegations regarding submission of charges and the complaint, and the role of the Governing Board, but denying the other factual allegations; they asserted affirmative defenses of failure to mitigate, exclusive Worker’s Compensation remedy, failure to exhaust administrative remedies, statute of limitations, res judicata (administrative action), and failure to state a claim. Pursuant to the parties’ consent, Judge Wanger ordered the ease assigned to the Magistrate Judge for all further proceedings on November 24, 2004. Defendants filed the instant motion for summary judgment and/or summary adjudication on July 22, 2005, including a notice, memorandum, declaration of Robert J. Rosati with exhibits, and a statement of undisputed facts. Plaintiff filed an opposing memorandum and statement of controverting evidence with exhibits on August 3, 2005. On September 30, 2005, Defendants filed a reply, including a statement of additional undisputed facts and a reply brief. Defendants’ motion came on regularly for hearing on October 7, 2005, at 9:30 a.m. in Courtroom 4 before the Honorable Sandra M. Snyder, United States Magistrate Judge. Ray Hassan and Anthony Bothwell appeared on behalf of Plaintiff; Robert J. Rosati appeared on behalf of Defendants. After argument, the parties submitted supplemental briefs with exhibits on November 9, 2005, and provided courtesy copies to the Court. The matter was submitted to the Court. II. Summary Judgment Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Under summary judgment practice, the moving party [Ajlways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). It is the moving party’s burden to establish that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. British Airways Board v. Boeing Co., 585 F.2d 946, 951 (9th Cir.1978). If a party moves for summary judgment with respect to a matter as to which the opposing party has the ultimate burden of persuasion at trial, then the moving party must show that the opposing party cannot meet its burden of proof at trial by establishing that there is no genuine issue of material fact as to an essential element of the opposing party’s claim or defense; the moving party must meet the initial burden of producing evidence or showing an absence of evidence as well as the ultimate burden of persuasion. Nissan Fire Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir.2000). In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the opposing party’s claim or defense, or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. Id. (citing High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir.1990)). In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact. Id. However, “where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Id. “[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. In such a circumstance, summary judgment should be granted, “so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id. at 323, 106 S.Ct. 2548. If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits or admissible discovery material in support of its contention that the 'dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n. 11, 106 S.Ct. 1348. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir.1987). III. Defendant Heid’s Argument that the FEHA Claim Is Barred by Plaintiffs Failure to Challenge the Determination of the School Board Defendant Heid claims that the FEHA action against him is barred because Plaintiff pursued a grievance with the school board, which found that she was not the victim of harassment, and Plaintiff failed to challenge that finding by filing and pursuing a mandate action in state court. Plaintiff asserts that she did not pursue the school board’s formal complaint procedure, so the board’s determination could not be binding; further, she is not barred by any failure to seek judicial review because Defendant failed to give her notice of the availability of judicial review and the time period within which such review was required to be initiated. In Johnson v. City of Loma Linda, 24 Cal.4th 61, 99 Cal.Rptr.2d 316, 5 P.3d 874 (2000), it was held that a FEHA action brought by a terminated employee was barred by laches where the personnel board of the city-employer had ruled against the employee in a grievance proceeding, and where the city council had affirmed the personnel ruling, because the employee had failed to file a timely challenge to the city’s ruling in the form of a petition for writ of administrative mandamus in the California courts. The California Supreme Court ruled that with respect to FEHA claims, under the doctrine of exhaustion of judicial remedies, where a party pursues an administrative remedy, receives an adverse finding, and fails to have the finding set aside through judicial review procedures, the administrative finding is binding in a later civil action concerning discrimination claims under FEHA. Id. at 76, 99 Cal.Rptr.2d 316, 5 P.3d 874. The court in Johnson noted that the Title VII claim was not barred by the unreviewed administrative determination. 24 Cal.4th at 74-75, 99 Cal.Rptr.2d 316, 5 P.3d 874. In Johnson, the injured employee filed a grievance with the employer, 24 Cal.4th at 66, 99 Cal.Rptr.2d 316, 5 P.3d 874, and was considered a party to the administrative proceeding, id. at 69-70, 99 Cal.Rptr.2d 316, 5 P.3d 874. Central to the holding was the premise that the employee in question pursued or availed himself of an administrative process that provided an internal remedy and resulted in administrative findings. Id. at 70, 76, 99 Cal.Rptr.2d 316, 5 P.3d 874. The court specified that the context in which this principle applies is where the party or entity whose quasi-judicial determination “is challenged — be it hospital, voluntary private or professional association, or public entity — has provided an internal remedy.” Id. at 70 n. 2, 99 Cal.Rptr.2d 316, 5 P.3d 874. The court recognized that a plaintiff has a choice of the administrative remedies available and may choose to use the FEHA process instead of civil service remedies. Id. at 72-73, 99 Cal.Rptr.2d 316, 5 P.3d 874. However, if the employee chooses to use the non-FEHA process provided for by the employer, obtains a decision, and fails to pursue a judicial remedy for reviewing the administrative action, then the findings in that administrative procedure should be given binding effect. This is necessary to 1) accord proper respect to the administrative agency’s quasi-judicial procedures and to preclude the party from circumventing the established process for judicial review via a petition for administrative mandate; and 2) provide a uniform practice of judicial, rather than jury, review of quasi-judicial administrative decisions. Johnson, 24 Cal.4th at 70, 99 Cal.Rptr.2d 316, 5 P.3d 874. Plaintiff argues that there is a factual dispute regarding whether Plaintiff pursued the administrative remedy before the school board. Review of the evidentiary materials shows that LB Superintendent Alderete testified at deposition that before September 10, 2003, or on August 13, 2003, during mediation, a mediator told Alderete and others that there was a sexual harassment claim or allegation, but “they” would not tell LB who was involved. LB asked them to tell who was involved and asked to have the complainant come forward. (D.’s Ex. 21 at 27-28, 72.) Alderete wrote a letter to a union representative, Gaulman, dated September 10, 2003, stating in part that at a meeting on September 9, 2003, where several people were in attendance, Gaulman indicated that a female member of the CSEA bargaining unit had experienced sexual harassment from a male supervisor who had repeatedly grabbed his crotch in front of her; Alderete further stated that Gaulman (“You”) refused to identify either the complaining witness or the supervisor involved, indicating that the complaining witness feared retaliation. Al-derete then formally requested CSEA (the union) and the complaining witness to come forward and file a complaint under the district’s sexual harassment complaint procedure so that the district could properly investigate the charges. Alderete attached a copy of the district’s complaint procedure to the letter, and he assured Gaulman that the district took all complaints alleging sexual harassment seriously and would ensure that no person filing a complaint would be subjected to retaliation. (D.’s Ex. 26.) Alderete testified that he first became aware that Plaintiff Veronica Garcia was the person discussed on September 9, 2003, during the “Mejia hearing” before the Board, which was not reported or recorded. (D.’s Ex. 21 at 28.) Plaintiff testified at deposition that she told Michaela Elliott about a masturbation incident several days after it happened, told her .union representative, (P.’s Ex. 7, at 92), and told the Board of Education at the time when she was present in regard to Mr. Mejia’s complaints; the union did not grieve against Heid because of what he did to her, but because of what Heid did to Mejia, (id. at 109-110); they did not complain about Heid’s treatment of Plaintiff because it was up to Plaintiff to complain, and she did not ask her union to complain about it because she did not think it was going to help her; when she went to the Mejia meeting, she did not know that he was going to share about the sexual harassment, but she expected to go as support with information about the incident concerning wiping her ass as consistent with Heid’s having been obscene with Mejia, (id. at 110-12). Thus, as of early September 2003, it does not appear that there was a formal union grievance requested by Plaintiff. This is consistent with her testimony that she did not take it up before the executive board of the CSEA chapter before the masturbation issue was brought up in front of the Board of Education. (D.’s Ex. 1 at 110, 111, 115.) Thereafter, Plaintiff appeared to lodge a complaint regarding Defendant Heid’s treatment of her. It is undisputed that Kaplan was hired to investigate and that Kaplan interviewed Plaintiff and witnesses identified by Plaintiff. (P.’s Stmt, of Evidence, items 2, 3.) Plaintiff testified that she met with Sue Kaplan, Gaulman, and John Puentes, and she identified witnesses; Kaplan took notes and told Plaintiff she was going to write a statement and send it to Plaintiff; and Kaplan wrote a letter to Plaintiff enclosing the statement “as Mr. Gaulman requested.” (D.’s Ex. 1 at 182, 184; D.’s Ex. 29 at 179-80; D.’s Ex. 14.) A letter to Plaintiff from Kaplan dated September 26, 2003, indicates that Kaplan met with Plaintiff on September 25, 2003, about the complaint; union representative Gaulman had requested that Kaplan prepare a statement from the interview to constitute the written complaint under the District’s complaint procedure; and Plaintiff was asked to review the statement, make changes, and sign and return. (D.’s Ex. 14.) Plaintiff testified that she understood that pursuant to the district’s complaint procedures, she had to submit a written complaint; the district was helping Plaintiff with the complaint. (D.’s Ex. 29, at 180.) Plaintiff discussed the declaration with Gaulman; although Kaplan instructed Plaintiff to make any needed changes, Plaintiff wanted to write her own statement with the changes. (Id. at 181.) Plaintiff did not sign the declaration that Kaplan had prepared. (Id.) Excerpts of Plaintiffs deposition testimony show that some form of complaint was submitted to Villalta about a month after Plaintiff spoke with Kaplan. Villalta concluded after investigation that the evidence did not substantiate Plaintiffs complaints. (D.’s Ex. 1 at 227.) Villalta wrote Plaintiff on October 23, 2003, and stated that pursuant to the district’s complaint procedure, it was thereby giving written notice of the investigative findings. (D.’s Ex. 5.) Villalta wrote that the district had completed its investigation of Plaintiffs allegations against Heid; her complaints, first raised at a board meeting and later contained in a written statement of her interview with Sue Kaplan on September 23, 2003, were found to have been unsubstantiated given the totality of the evidence. Villalta informed her that she could file a written appeal of the decision to the Board within ten working days of receipt of the letter, which would result in an appeal hearing to be held at the next regularly scheduled board meeting which would fall at least twelve days after the appeal was filed. (D’s Ex. 5.) Further, Villalta informed Plaintiff that she also had appeal rights to the State Department of Education. (Id.) Attached to the letter was a copy of the Governing Board’s procedures for discrimination complaints, which contained notification that injunctions, restraining orders, and other unspecified civil law remedies might also be available to complainants. The receipt of the findings and notice are not disputed by Plaintiff, although Plaintiff claims that the findings were gratuitous. (P.’s Stmt., item 4.) Beginning October 28, Garcia corresponded with Kaplan by e-mail and conversed with her regarding making corrections to her “statement”; Plaintiff sent corrections on October 28. (D.’s Ex. 29 at 227-28, Exs. 30-33.) The corrections relate solely to modifications of an earlier statement. Plaintiff testified that after receiving notice of Villalta’s findings, she then wrote Kaplan and sent corrections to her documents. (D.’s Ex. 1 at 227.) In a memo to file dated October 28, 2003, regarding a telephone conversation between Kaplan and Plaintiff on the same date, Kaplan noted that Plaintiff was told that her corrected statement was too late because the investigation had been completed, and that any of her concerns about the process should be taken up with Mr. Villal-ta. (Id., Ex. 33.) It thus does not appear that this correspondence constituted a lodging of an appeal with the Board; rather, it was an effort by Plaintiff to make changes to the initial complaint. Further, because Kaplan referred Plaintiff to Villal-ta, it does not appear solely from the contents of this document that Kaplan understood the correspondence to constitute an appeal to the Board by Plaintiff. It is undisputed that a board hearing was held on November 19, 2003, at which the Board met in closed session, found that there was no evidence of sexual harassment, and instructed Alderete to advise Garcia, which he did on November 20, 2003. (P.’s Stmt., items 5-7.) It is further undisputed that Garcia did not challenge the Board’s findings with the California Department of Education or seek a writ of mandate. (Id. at item 8.) However, Plaintiff argues that this is impertinent because she never filed an appeal with the school board. (P.’s Stmt, at item 8.) At deposition Plaintiff testified that she had submitted a typewritten statement to the Board of Education; she referred to having complained to the Board of Education more than once; and she described her 2003 evaluation by Heid as retaliation for her complaining about incidents (D.’s Ex. 1 at 55-56, 85, 137). However, these deposition excerpts do not specify the stage of the proceedings to which Plaintiff was referring. Plaintiff testified that she went to the Board twice. Once was in reference to the Mejia grievance; the other was in reference to the sexual harassment. The one regarding Mejia was in September 2003, and the sexual harassment charge was in November 2003. (P.’s Ex. 7 at p. 53.) Plaintiff referred to a typewritten statement that she had taken to or in front of the Board of Education. (Id. at 56, 128.) On October 29, 2003, six days after Villalta notified Plaintiff that the investigation resulted in a conclusion that Plaintiffs complaints were unfounded, Plaintiff signed under penalty of perjury a statement to Sue Kaplan in connection with a sexual harassment investigation, which she stated was the basis for her complaint. (D’s Ex. 6.) This statement is expressly made to Kaplan, investigator of the complaint (first page), and it seeks removal of the negative evaluation from her file, an apology, and Heid’s resignation. It does not refer to a previous investigation or set of administrative findings; it does not expressly purport to be an appeal, as distinct from a correction or confirmation of the initial statement. Plaintiff testified that she spoke with Kaplan in November about Kaplan’s wanting to follow up on an additional comment about Heid having talked about getting even on an evaluation. (P’.s Ex. 7 at 231.) This tends to show that a process regarding the harassment complaint was continuing. Further, reference to Plaintiffs own representations sheds light on the nature of the proceedings at this point. Plaintiff alleges in the first amended complaint filed in this Court that she lodged a formal complaint pursuant to Defendant district’s complaint procedure regarding Heid’s sexually offensive conduct, discriminatory treatment, retaliation, and creation of a sexually hostile work environment. (FAC at 4.) Reference to Plaintiffs EEOC complaint (D.’s Ex. 4), dated December 30, 2003, reveals that in a cover letter that Plaintiff wrote to whom it may concern, Plaintiff stated that the letter from Villalta stating the results of the district’s findings caused her to decide to go in front of the Board of Education to raise her complaint. It may be concluded from this direct evidence of Plaintiffs understanding of the procedures and knowledge of the history of her own actions in pursuing a complaint that Plaintiff pursued the district’s complaint procedures to the point of filing an appeal with the Board of Education. In resisting the assertion that Plaintiff pursued the district’s complaint procedures, Plaintiff cites to evidence from various sources, including Puentes’ testimony that Plaintiff was afraid of retaliation, (P.’s Ex. 21 at p. 44), Plaintiffs testimony that she was afraid of losing her job (P.’s Ex. 23 at p. 47), her testimony that she did not complain about Heid’s treatment of her or ask her union to complain about it because she did not think it was going to help her, (P.’s Ex. 7 at 110-111), and the fact that in September 2003 Superintendent Alderete solicited a complaint. This evidence may support a conclusion that Plaintiff was reluctant early in the process, but it does not relate directly to the conduct later in the process. Plaintiff cites to Gaulman’s deposition at page 66. (P.’s Ex. 10, at 66, lines 7-9.) Reference to Plaintiffs exhibit 10 does not reveal a page 66; it does contain page 87, which contains Puentes’ testimony that at some point Plaintiff had questioned whether she should even have complained about it in the first place but that she was going through a process. This reveals some uncertainty or ambivalence on the part of Plaintiff, but it again does not directly relate to the nature or extent of Plaintiffs participation in November 2003. Plaintiff argues that further evidence that Plaintiff did not avail herself of an appeal to the Board is found in Plaintiffs failure to comply with the district’s procedures for discrimination complaints. (P.’s Ex. 21.) Plaintiff first points to her failure to complain informally to her supervisor or summarize her efforts at informal resolution. Preliminarily, the Court notes that there are several documents regarding procedures. Plaintiffs Exhibit 21 purports to be LB Board policy regarding employee and personnel complaints as well as general guidelines regarding unspecified types of complaints. It specifies that if a complaint involves sexual harassment, it should be made directly to the employee’s immediate supervisor; however, an employee is not required to resolve sexual harassment complaints with the offending person. (P.’s Ex. 21 at p. 2, ¶ 2.) Plaintiffs Exhibit 21 as well as Defendant’s Exhibit 8 (at p. 1) indicate that if a complaint is related to discrimination, the district’s procedure for discrimination complaints should be used. The discrimination complaint procedures were attached to Villal-ta’s letter of October 23, 2003 (D.’s Ex. 5). They indicate that the first step is an informal meeting with an administrator. In the supplemental brief, Plaintiff appears to argue that a complaint procedure for personnel or employees of the LB is the applicable procedure because Plaintiff refers to steps and time deadlines present in Plaintiffs Exhibit 21 which differ from those in the discrimination complaint procedure. (P.’s Ex. 21.) However, reference to the guidelines of Plaintiffs Exhibit 21 reveal that the first guideline states that if a complaint is related to discrimination, the district’s procedure for complaints concerning discrimination should be used. (Id.) Plaintiffs complaint concerned discrimination on the basis of sex as well as for harassment or hostile work environment. The Court concludes that it will thus apply the procedure for discrimination complaints to Plaintiffs complaint. The letter of Kaplan dated October 17, 2003, summarizing her investigation, indicates that because Plaintiffs supervisor was the alleged harasser, Plaintiffs comments at the Board meeting were considered to satisfy the informal step. (D.’s Ex. 27 at Bates pp. 33-34.) This is consistent with the policies of LB and is not a substantial or significant deviation from the procedure at the first level under the circumstances. It does not indicate a failure to pursue the internal remedy. Thus, Plaintiff did not deviate substantially from the procedure at the first level. Plaintiff notes her further failure to file a formal written complaint with her immediate supervisor within sixty days of the conduct complained of, and the failure of the immediate supervisor or principal at that step to conduct an investigation, meet with the complainant to resolve the complaint, and provide a written answer in ten working days after the meeting. Turning instead to the procedures for a discrimination complaint, the procedure requires a complaint to be initiated within thirty days after the complainant should have known of the alleged discrimination. The second level requires a formal written complaint to the district nondiscrimination coordinator within ten days of the attempt to resolve the complaint informally. It is apparent that both parties considered the complaint at both levels to be timely. As to the deadline for a writing, Kaplan’s letter reveals that the parties considered the written statement that Kaplan prepared at Gaulman’s request, and which Plaintiff had not yet signed, as a timely formal written complaint. (D.’s Ex. 27 at Bates p. 34.) In order to expedite the investigation, and because the procedure required a written complaint, Kaplan asked Plaintiff to put her complaint in writing at the initial interview of Plaintiff. (D.’s Ex. 6 at p. 2.) The procedure required that the investigation conclude in ten days on the first formal level; Kaplan sought and received permission from Plaintiff for an extension of time to investigate. (Id.) It may be inferred that the parties’ various writings document an agreement to extend the time limits by written mutual agreement, as was permitted by the complaint procedure. Plaintiff also notes the failure of both parties to comply with the formal complaint procedure step 2, which required Plaintiff to file a written complaint with the superintendent or designee within five working days of receiving the answer at step one that includes all information presented at step one, and the Superintendent or designee to conduct any investigation, meet with the complainant, and present all concerned parties with a written answer to the complaint within ten working days after the meeting. Plaintiff also points to step three of the formal complaint procedure, which requires a written appeal to the Board including all information presented at steps one and two, and a report from the superintendent or designee to the Board that describes the attempts to resolve the complaint at step two. Plaintiff asserts that no report was submitted, and no appeal hearing was held. Again, the Court notes that this argument relates to the more general procedure, not the discrimination procedure. However, the Court notes that both the discrimination complaint procedures and the complaint guidelines provide for a level of review of the immediate supervisor’s or district nondiscrimination coordinator’s response to the formal written complaint. This additional level of review, to be completed before an appeal to the Board was undertaken, was not performed or sought. It is possible that the district considered one level bypassed because of the fact that the harasser was the immediate supervisor. Alternatively, it may be that under the discrimination procedure, the superintendent had designated the Board to undertake the next level of review. In any event, it appears that LB considered the next level of review to be an appeal to the Board, which is the final step of review under either complaint procedure. The apparent absence of one level of review is troubling, but it is not sufficient to support a conclusion that the complaint procedure was not pursued by Plaintiff. In light of Plaintiffs admissions that she sought review by the Board, and considering the Board’s having held a hearing on November 19, 2003, and having informed Plaintiff on November 20, 2003, that it had denied her complaint of sexual harassment, the Court should conclude that Plaintiff did pursue to a final decision before the LB Board her complaint regarding Heid’s conduct. She thus exhausted the employer’s internal remedy. Citing Schifando v. City of Los Angeles, 31 Cal.4th 1074, 6 Cal.Rptr.3d 457, 79 P.3d 569 (2003), Plaintiff argues that she was not required to pursue any internal remedy offered by her employer. Schifando held that an employee-plaintiffs allegation of exhaustion of FEHA remedies was sufficient to state exhaustion of administrative remedies even though there was no allegation of exhaustion of the employer’s internal administrative remedy because it was not necessary for an employee to exhaust both such remedies. In Johnson, however, the employee had pursued both the city’s internal grievance procedure as well as FEHA’s process, where he was issued a right-to-sue letter. The court held that the civil service findings with respect to the public employee were binding because not set aside judicially. Accord, Risam v. County of Los Angeles, 99 Cal.App.4th 412, 421, 121 Cal.Rptr.2d 267 (2002); see Page v. Los Angeles County Probation Department, 123 Cal.App.4th 1135, 20 Cal.Rptr.3d 598 (2004). Here, Plaintiff not only pursued her FEHA claim, but she also pursued her employer’s internal remedy to a final decision within the internal remedial system. Johnson applies to make the Board’s findings binding on Plaintiff. Schifando made it clear that Johnson would apply to prevent an employee from exhausting the employer’s internal remedy and then getting a second bit of the “procedural apple.” Schifando, 31 Cal.4th at 1090-91, 6 Cal.Rptr.2d 457, 79 P.3d 569. Citing Lewis v. Superior Court, 19 Cal.4th 1232, 1247, 82 Cal.Rptr.2d 85, 970 P.2d 872 (1999), Plaintiff argues that the procedure of the Board was not a quasi-judicial proceeding because such a proceeding has been defined as an administrative hearing involving a confrontation, oral or otherwise, between an affected individual and an agency decision-maker sufficient to allow an individual to present the case in a meaningful manner. Plaintiff contends that LB’s internal complaint procedure was not such a proceeding because Plaintiff lacked counsel at the school board hearing; evidence was suspect because Kaplan, the investigator, was employed by a law firm hired by the school board; and the mere appearance of Plaintiff and witnesses does not mean that Plaintiff sought or requested the hearing. Cal.Civ.Proc.Code § 1094.5(a), providing for a review of administrative decisions, concerns writs issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, board, or officer. It has been held that where a complainant is deprived of notice and a hearing, and is not informed of the reason for the action taken or of the right to respond to the charges against the complainant, it is not a quasi-judicial proceeding. Westlake Community Hospital v. Superior Court (Raiman), 17 Cal.3d 465, 478, 485, 131 Cal.Rptr. 90, 551 P.2d 410 (1976). However, no formal judicial process is required; it is sufficient if the procedure identifies a decision-making body and requires it to give full and fair consideration at a hearing. Pomona College v. Superior Court (Corin), 45 Cal.App.4th 1716, 1729, 53 Cal.Rptr.2d 662 (1996) (tenure review decision). Substantive and procedural defects in a quasi-judicial proceeding may be raised in a mandamus proceeding. West-lake Community Hospital v. Superior Court (Raiman), 17 Cal.3d at 484, 131 Cal.Rptr. 90, 551 P.2d 410; Pomona College v. Superior Court (Corin), 45 Cal. App.4th at 1729, 53 Cal.Rptr.2d 662. Defendant has shown that the procedures in question called for the lodging of a complaint; notice of hearing, of any decision rendered, and of the right to appeal to the next level; submission of all information presented at previous levels to the Board; a hearing at a regular Board meeting; a decision by the Board within ten days; and an appeal thereafter to the state department of education as well as access to other civil law remedies. As previously noted, Plaintiff appears to have admitted that witnesses and Plaintiff appeared before the Board. It may be reasonably inferred and concluded that LB’s procedures required a hearing and the taking of evidence, and they vested discretion in the determination of facts in the Board. Thus, the Court concludes that the LB Board’s hearing and determination constituted a quasi-judicial proceeding subject to review by administrative mandamus pursuant to § 1094.5. Finally, Plaintiff argues that she is not bound by the Board’s findings because LB did not comply with the provisions of Cal.Civ.Proc.Code § 1094.6(f), which states that in making a final decision, the agency “shall provide notice to the party that the time within which judicial review must be sought” is governed by the section, which in § 1094.6(b) imposes a ninety-day statute of limitations after a final decision is rendered. It does not appear that any defendant gave notice to Plaintiff of the ninety-day statute of limitations for filing a petition for administrative mandamus. However, this does not mean that Plaintiff is not subject to the decision. One case held that an employer’s decision does not become final unless notice is given. Cummings v. City of Vernon, 214 Cal.App.3d 919, 922, 263 Cal.Rptr. 97 (1989). However, it has been held that § 1094.6(f) means only that absent notice, the strict ninety-day statutory period is tolled, and that instead such a case is governed by the doctrine of laches. El Dorado Palm Springs Ltd. v. Rent Review Commission, 230 Cal.App.3d 335, 344-47, 281 Cal.Rptr. 327 (1991) rev. denied, August 29, 1991. This is the better view because it does not insulate decisions from judicial review simply because notice of the statute of limitations is not given. Further, it is consistent with Johnson, 24 Cal.4th at 68, 99 Cal.Rptr.2d 316, 5 P.3d 874, where the Supreme Court of California noted that the doctrine of laches, and not the ninety-day time limit expressed in § 1094.6, governed the case because the public agency employer did not notify the plaintiff employee in that case of the ninety-day period. The Court thus concludes that the failure to give notice of the ninety-day period did not render the requirement of administrative mandamus inapplicable to Plaintiff. Where a plaintiff who pursued the employer’s internal remedy did not seek review by writ of administrative mandamus to reverse an unfavorable finding with respect to conduct alleged to have violated FEHA, the appropriate remedy is to grant summary judgment because the administrative findings are binding by way of collateral estoppel. Risam v. County of Los Angeles, 99 Cal.App.4th 412, 419-20, 121 Cal.Rptr.2d 267 (2002) (citing Johnson v. City of Loma Linda, 24 Cal.4th 61, 69-70, 99 Cal.Rptr .2d 316, 5 P.3d 874). Collateral estoppel in California bars litigation of an issue decided at a previous proceeding if 1) the issue necessarily decided at the previous proceeding is identical to the one sought to be relitigated; 2) the previous proceeding resulted in a final judgment on the merits; and 3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior proceeding. Risam, 99 Cal.App.4th at 420, 121 Cal.Rptr.2d 267 (citing Knickerbocker v. City of Stockton, 199 Cal.App.3d 235, 243-44, 244 Cal.Rptr. 764 (1988)). Here, the complaints that Plaintiff submitted to Defendant LB were essentially complaints by Plaintiff against Defendant Heid; thus, the same parties are involved. The conduct covered by the complaint included all the factual matters covered by the instant claim, including Heid’s yelling and threats in October 2002, retaliation for complaining about the yelling, Heid’s November 2002 comments regarding wiping Plaintiffs ass, retaliation for complaining regarding that incident, the evaluations, screaming, and the sexual harassment in May 2003. (D.’s Exs. 14, 6.) In summary, the Court concludes that Plaintiffs failure to obtain reversal of the findings of the Board by way of administrative mandamus bars Plaintiffs FEHA action against Heid with respect to the conduct encompassed by the present FEHA claim against Heid. IV. Summary Adjudication Defendants LB and Heid move for summary adjudication of the claims involving retaliation, failure to take appropriate action regarding Plaintiffs complaints, and most of the claim concerning sexually hostile work environment except for two incidents of “masturbation” that occurred on May 30, 2003, and January 2, 2004. Defendants argue that the conduct complained of is not actionable under the governing California and federal law, and that much of the conduct cannot be considered because with respect to it, Plaintiff failed to exhaust administrative remedies because the conduct was not set forth in her complaints to the California Department of Fair Employment and Housing (DFEH) and federal Equal Employment Opportunities Commission (EEOC). A. Exhaustion . of Administrative Remedies 1. Title VII With respect to Title VII, before filing suit on a statutory employment discrimination claim, the aggrieved employee must have exhausted the employee’s administrative remedy by filing a timely and sufficient charge with the appropriate administrative agency and obtained a “right to sue” letter. 42 U.S.C. § 2000e-5(b), (f)(3). A failure of exhaustion in the form of a failure to file a timely administrative claim has been characterized as not jurisdictional and may be raised as an affirmative defense to the claim. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). However, the filing of a sufficient administrative claim that includes the matters forming the basis of a later judicial claim, and the receipt of a right-to-sue letter, have been referred to as jurisdictional pre-requisites to maintaining a Title VII action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (filing charges with the EEOC and receiving notice of the right to sue are jurisdictional prerequisites to filing a suit in federal court); B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir.2002). The purpose of the requirement of administrative exhaustion is to give the charged party notice of the claim and to permit investigation and conciliation by the administrative agency, as well as to narrow the issues for prompt adjudication and decision. Id. A judicial complaint may encompass any discrimination like or reasonably related to the allegations of the EEOC charge. Freeman v. Oakland Unified School District, 291 F.3d 632, 636 (9th Cir.2002) (quoting Oubichon v. North Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir.1973)). A district court’s jurisdiction extends to all allegations of discrimination that fall within the scope of either the EEOC’s actual investigation or an EEOC investigation that can reasonably be expected to grow out of the charge of discrimination. Freeman, 291 F.3d at 636. A district court must inquire whether the original EEOC investigation would have encompassed the additional charges made in the court complaint but not included in the EEOC charge itself. Id. The language of EEOC charges must be liberally construed because the charges are often made by lay people who are not expert in the technicalities of formal pleading; the crucial element of the charge is the factual statement. B.K.B. 276 F.3d at 1100. Allegations of discrimination not included in the administrative charge may not be considered by a district court unless the new claims are like or reasonably related to the allegations contained in the EEOC charge. Id. Factors appropriately considered are the alleged basis of the discrimination, dates of the discriminatory acts specified in the charge, perpetrators of discrimination named in the charge, locations at which discrimination is alleged to have occurred, and the extent to which the judicial claims are consistent with the Plaintiffs original theory of the case. Id. It is undisputed that Plaintiff filed her DFEH complaint on January 5, 2004; she filed her EEOC complaint on February 24, 2004. It is undisputed that Plaintiffs DFEH/EEOC complaint stated the following: In March 24, 2003, I was subjected to retaliation. In May 2003,1 was sexually harassed. I was hired April 23, 2001. I. I believe I was subjected to retaliation in the form of being issued a poor performance evaluation. I also believe I was sexually harassed because of my sex, female. My beliefs are based on the following: A. In March 24, 2003, I was issued a poor performance evaluation by Mr. Ray Heid. Investigation will reveal that prior to my reporting harassment my performance evaluations were good. B. On May 30, 2003, I was visually and verbally sexually harassed by Ray Heid, Facility Director. To my knowledge no corrective action was taken. (P.’s Statement, items 48, 49; D.’s Exs. 4, 16.) Thus, reasonably and liberally interpreted, Plaintiffs 2004 administrative claims specifically mention good performance evaluations preceding a poor evaluation on March 24, 2003, which was alleged to have been retaliation for previous reporting of previous, unspecified sexual harassment; visual and verbal sexual harassment on May 30, 2003; and a failure on the part of the employer to take corrective action. The theories involved are sexual harassment, failure to remedy harassment, and retaliation for reporting harassment. The time period encompassed by the express allegations of the administrative claim logically includes the time of the occurrence of the previous, unspecified harassment; the reporting of that harassment, which necessarily preceded March 2003; the allegedly retaliatory performance evaluation of March 2003; the later harassment of May 2003; and any time period after the first report of the sexual harassment during which the employer could have taken corrective action. The FAC filed here contains things not expressly specified in the administrative claim: 1) pre-evaluation allegations regarding informal complaints with district representatives alleging sexually offensive conduct by Defendant Heid; 2) specifications of additional incidents of Heid’s retaliation against Plaintiff (closer supervision, continuing sexually offensive conduct, and conduct intended to ridicule and embarrass Plaintiff, in addition to the unwarranted negative evaluation); 3) sexual discrimination (a continuing pattern of conduct creating a sexually hostile work environment, most recently manifested by the sexually suggestive comments and gestures to Plaintiff on May 30, 2003); and 4) Defendant district’s failure to take appropriate action after Plaintiff formally complained, consisting of denying that Heid’s conduct amounted to sexual harassment. (FAC at 4-5.) The informal complaints Plaintiff made about Heid before March 2003 are reasonably understood as the root of the retaliation of which Plaintiff complained and thus were clearly within the scope of the express allegations of the administrative complaint. A reasonable investigation of the claim regarding retaliatory evaluation would have encompassed other acts of arguably retaliatory conduct during the same period. The district’s actions in response to the formal complaint were relevant to the related issue of its other actions in response to informal complaints regarding the same conduct, namely, sexual harassment. The pattern of conduct constituting a sexually hostile work environment was part and parcel of the matter investigated, namely, alleged sexual harassment, Plaintiffs complaints about that conduct, the alleged retaliation, and the Defendant district’s response to Plaintiffs complaints. In summary, the additional specification in the FAC related to matters that either fell within the scope of the EEOC’s actual investigation or an EEOC investigation that could reasonably be expected to grow out of the charge of discrimination. They were like or reasonably related to the allegations contained in the EEOC charge. The alleged basis of the discrimination was the same. The time period of the discriminatory acts specified within the charge largely overlapped the period of the acts stated in the FAC. The perpetrators of the discrimination as well as the general location at which the alleged discrimination took place, as alleged in the administrative complaint, appear to be the same as those involved in the allegations in the complaint. The claims in the complaint are consistent with the Plaintiffs original theory of the case. The Court concludes that Plaintiff did not fail to exhaust her administrative remedies with respect to claims under Title VII involving retaliation, failure to take appropriate action regarding Plaintiffs complaints, or a sexually hostile work environment. 2. FEHA Previously the Court has concluded that the FEHA action against Heid is barred by collateral estoppel; thus, further issues pertaining to this claim are moot. However, in case the Court’s conclusion is incorrect, the Court notes that result under FEHA would be the same as that under Title VII. With respect to an action under California’s FEHA, Cal. Govt.Code § 12960 provides for the filing of an administrative complaint as follows: (b) Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint, in writing, that shall state the name and address of the person, employer, labor organization, or employment agency alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department. The director or his or her authorized representative may in like manner, on his or her own motion, make, sign, and file a complaint. (Emphasis added.) Under California law, the requirement of exhaustion of administrative remedies under FEHA is a jurisdictional prerequisite to resort to the courts. Johnson v. City of Loma Linda, 24 Cal.4th 61, 70, 99 Cal.Rptr.2d 316, 5 P.3d 874 (2000). It is generally a plaintiffs burden to plead and prove timely exhaustion of administrative remedies, such as filing a sufficient complaint with the Department of Fair Employment and Housing (DFEH) and obtaining a right-to-sue letter. Westinghouse Elec. Corp. v. County of Los Angeles, 42 Cal.App.3d 32, 37, 116 Cal.Rptr. 742 (1974) (regarding taxpayer duty to establish exhaustion). Failure to exhaust warrants a defense summary judgment. Martin v. Lockheed Missiles & Space Company, Inc., 29 Cal.App.4th 1718, 1724, 35 Cal.Rptr.2d 181 (1994). As to the requisite level of specificity of an administrative complaint, § 12960 requires that the particulars of the unlawful practice be stated. The policies underlying administrative exhaustion under FEHA are to resolve disputes and eliminate unlawful employment practices by conciliation; the purpose of the administrative charge is to trigger the investigatory and conciliatory procedures of the responsible administrative agency. Okoli v. Lockheed Technical Operations Company, 36 Cal.App.4th 1607, 1615, 43 Cal.Rptr.2d 57 (1995) (holding that a DFEH complaint regarding specific acts of discrimination based on race and national origin did not suffice to exhaust a claim of subsequent retaliation because of the filing of the charge). Claims in a complaint subsequently filed in court can include the precise unlawful practices mentioned in the DFEH complaint as well as claims like or reasonably related to the DFEH complaint that would be necessarily be uncovered in the course of a DFEH investigation. Id. at 1614-18, 43 Cal.Rptr.2d 57. This may include new acts occurring during the pendency of the charge before the EEOC. Oubichon v. North American Rockwell Corporation, 482 F.2d 569, 571 (9th Cir.1973). FEHA provisions should be liberally construed for the accomplishment of the purposes thereof, including the resolution of potentially meritorious claims on the merits. Richards v. CH2M Hill, Inc., 26 Cal.4th 798, 819, 111 Cal.Rptr.2d 87, 29 P.3d 175 (2001). Here, as set forth at length in connection with the EEOC administrative claim, the new matter in the complaint concerns claims like or reasonably related to the DFEH complaint that would necessarily be uncovered in the course of a DFEH investigation. Thus, in summary, the Court has previously concluded that Plaintiffs FEHA claim is barred by collateral estoppel. However, should such issue be appropriately before the Court, the Court concludes that Defendant has not established that it is entitled to judgment on some aspects of Plaintiffs claims due to any failure on Plaintiffs part to exhaust administrative remedies under FEHA. B. Statide of Limitations Plaintiff filed her DFEH complaint on January 5, 2004; on January 28, 2004, the DFEH sent Plaintiff a notice of case closure because the complaint was waived to another agency (EEOC). (P.’s Ex. 3.) She filed her EEOC complaint on February 24, 2004. The EEOC sent Plaintiff a notice of right to sue within ninety days on May 5, 2004. (P.’s Ex. 2.) Defendant argues that all incidents prior to January 5, 2003, with respect to the DFEH claim, and before April 2003, with respect to the EEOC complaint, are outside the statute of limitations. Plaintiff notes that when discrimination charges are filed with a state agency in a “deferral state,” including California, within 300 days of the occurrence of the employment practice, then the charges are deemed constructively filed with the EEOC at the same time pursuant to a work-sharing agreement between the DFEH and the EEOC. 29 C.F.R. § 1626.10(c); McConnell v. General Telephone Company of California, 814 F.2d 1311, 1315-16 (9th Cir.1987). However, pursuant to 42 U.S.C. § 2000e-5(c), the charge cannot be considered “filed” with the EEOC “before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated.” Id. This is because the state agency must be given a sixty-day window in which it has the initial and exclusive right to process the charge, “free from premature federal intervention.” EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 110, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988). The net effect of this sixty-day deferral provision on the 300-day limitations period is. that a charge initially filed with a state agency will be treated as constructively filed with the EEOC upon either the expiration of 60 days or the termination of agency proceedings, whichever occurs first. See 42 U.S.C. § 2000e-5(c); see also 29 C.F.R. § 1601.13(b)(1). Here, the state agency proceedings terminated on January 28, 2004, at which time the DFEH charge was deemed constructively filed with the EEOC. 1) Title VII Title 42 U.S.C. § 2000e-5(e)(l) requires that a charge be filed within 180 days after the alleged unlawful employment practice occurred, except in cases in which the aggrieved person has initially instituted proceedings with an authorized state or local agency, in which ease the charge must be filed within 300 days after the alleged unlawful employment practice occurred, or within thirty days after notice of the agency’s termination of proceedings, whichever is earlier. The court considered when an unlawful employment practice occurs within the meaning of § 2000e-5(e)(l) with respect to discrete discriminatory acts and hostile work environment claims in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002); it did not consider “pattern or practice” claims, id. at 115 n. 9, 122 S.Ct. 2061. Subject to waiver, estoppel, and equitable tolling, discrete retaliatory or discriminatory acts each constitute separate, distinct unlawful employment practices, and they occur on the day that they happen, so a party must file a charge within 300 days of the date of such an act or lose the ability to recover for it. Id. at 110-11, 113, 122 S.Ct. 2061. The mere fact that an otherwise time-barred discrete act is related to acts alleged in timely filed charges is not sufficient to render it actionable. Id. at 113, 122 S.Ct. 2061. A hostile work environment (HWE) claim differs from a claim of a discrete act because a HWE claim by its very nature involves cumulative or repeated conduct, and it is composed of a series of separate acts that collectively constitute one unlawful employment practice. Id. at 115, 117, 122 S.Ct. 2061. It cannot be said that such an unlawful employment practice occurred on any particular day; indeed, a single act of harassment may not be actionable on its own. Id. at 115, 122 S.Ct. 2061. Discriminatory harassment constitutes a particular type of discrimination with respect to the terms, conditions, or privileges of employment mentioned in § 2000e-2(a)(l) that violates the Act where the workplace is permeated with discriminatory intimidation, ridicule, and/or insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Id., at 116, 122 S.Ct. 2061. Determination of the presence of an actionable hostile work environment involves consideration of all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating as distinct from merely offensive, and whether it unreasonably interferes with an employee’s work performance. Id. at 117, 122 S.Ct. 2061. As long as an act contributing to the claim occurs within the filing period, some of the component acts of the HWE practice may fall outside the statutory time period, and a court may consider the entire time period of the hostile environment for the purpose of determining liability. Id. at 117, 122 S.Ct. 2061. The employer may be liable for all acts that are part of the claim so long as at least one act within the statutory period is related to the others or is part of the same HWE practice. Id. at 118, 120, 122 S.Ct. 2061. It has been held that actions were all part of the same actionable HWE practice where there was no intervening act of the employer, and all the component acts involved the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers, such as where managers made racial jokes, used racial epithets, performed racially derogatory acts, and made negative comments regarding the capacity of blacks to be supervisors. Id. at 120, 122 S.Ct. 2061. The remedy for delay in filing with the EEOC in such a case is to afford the defendant employer equitable defenses, such as laches. Id. at 121, 122 S.Ct. 2061. Defendant argues that the acts alleged in Plaintiffs case are simply discrete discriminatory acts and not incidents in a larger HWE practice. Defendant cites Porter v. California Dept. of Corrections, 388 F.3d 1018, 1027-28 (9th Cir.2004), which the Court notes was superseded upon denial of rehearing by the opinion at 419 F.3d 885 (9th Cir.2005). Porter establishes that a HWE claimant to survive summary judgment must show 1) the complainant was subjected to verbal or physical conduct of a sexual nature; 2) the conduct was unwelcome; and 3) the conduct was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment. 419 F.3d at 892 (citing Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir.2003)). Here, Plaintiff alleged sexual discrimination (presumably of the HWE variety as distinct from quid pro quo), including pre-evaluation, informal complaints with district representatives alleging sexually offensive conduct by Defendant Heid; additional incidents of Heid’s retaliation against Plaintiff, including closer supervision, continuing sexually offensive conduct, conduct intended to ridicule and embarrass Plaintiff, and the unwarranted negative evaluation; sexual discrimination consisting of a continuing pattern of conduct creating a sexually hostile work environment, most recently manifested by the sexually suggestive comments and gestures to Plaintiff on May 30, 2003; and Defendant district’s failure to take appropriate action after Plaintiff formally complained, consisting of denying that Heid’s conduct amounted to sexual harassment. Plaintiffs statem