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Losing out on promotions to a boss’s bedmates isn’t just unfair, it’s discrimination, the state Supreme Court appeared to say during oral arguments Tuesday. Led by Chief Justice Ronald George, a majority of the justices expressed outrage at the plight of Edna Miller and Frances Mackey, longtime Corrections Department employees who watched helplessly as less-qualified women moved up in the ranks after allegedly engaging in affairs with the warden of a Central Valley prison. Even Justice Joyce Kennard, who seemed reluctant to sign on with the majority, described the situation as the “workplace from hell.” Miller and Mackey sued the Department of Corrections in 1999, claiming sexual discrimination, sexual harassment and retaliation based on allegations — later verified in an internal investigation — that Lewis Kuykendall, then warden of Chowchilla’s Valley State Prison for Women, promoted three female employees who had provided him sexual favors. Miller and Mackey also contended that the promoted women then subjected the plaintiffs to a constant stream of physical and emotional harassment. The case was dismissed on summary judgment at the trial court level, and two years ago Sacramento’s Third District Court of Appeal held that while the situation was unfair, there was no recognizable harassment or discrimination based on sex or gender. Sacramento-based Deputy Attorney General David Neill hammered on that same theme Tuesday, but was constantly cornered by at least five of the justices. “Is it relevant that there were three sexual affairs here? Doesn’t that go toward creating a hostile work environment?” George asked. “Just enough to go to trial?” When Neill responded that the number of affairs didn’t rise to the level of causing a workplace problem, George pounced again. “Well, how many would you need?” he asked. “Would it take five affairs, seven affairs, 10 affairs?” Neill reiterated that the key issue has to be whether there was discrimination based on sex. The affairs were consensual, he said, and, therefore, there was no discrimination. “So, what if they were consensual for the purpose of a promotion?” Justice Ming Chin queried. Justice Kathryn Mickle Werdegar wondered how there couldn’t be a triable issue of fact for a jury, while Justice Carlos Moreno said there seemed to be a “reasonable good faith belief” by Miller and Mackey that there was harassment and discrimination. “You don’t see a connection between these relationships with the warden and the conduct of the paramours?” George asked. Justice Joyce Kennard, meanwhile, appeared to accept the AG’s position that there couldn’t be harassment or discrimination because Miller and Mackey, while not getting promotions, were never forced to have sex with Kuykendall. “Where is the discrimination here?” she asked the women’s attorney, appellate specialist Daniel Smith of Kentfield, during a tense and contentious interaction. “How was your client sexually discriminated against?” When Kennard pointed out that Miller eventually got promoted to captain, Smith shot back, “As a bribe.” During rebuttal, when Smith apologized to Kennard for calling some of her earlier questions improper, the justice pointedly refused to look up from the bench. A ruling in Mackey v. Department of Corrections, S114097, is due in 90 days.

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