Surrell v. California Water Service Co.
Filed March 11, 2008
Cite as 06-15400

Summary Judgment Affirmed on Appeal

Cal Water (CW), a wholly owned subsidiary of California Water Service Group, is a privately owned company that provides water service to businesses and consumers in communities throughout California.

Surrell began employment as a customer-service representative at CW’s Stockton District in January 1997. At all times during her employment with CW, she was a member of the Utility Workers Union of American AFL-CIO (union).

According to the collective-bargaining agreement between the union and CW, “vacant or newly created positions were open for which had a bid by current employees and filled based on seniority. But temporary jobs that would not last longer than 120 days were filled at management’s discretion, without regard to seniority.” It was also agreed that CW can subject employees to drug test if they appeared to be impaired.

When the Office Manager position was announced vacant, she was not promoted. Instead, CW hired Regina Coe, a younger, white, female applicant. Neither was she considered for training for the Head Cashier position as said position was given to Holt, a younger, white co-worker with less seniority than she was.

Surrell was submitted to drug test twice because of her slurred speech and other unusual acts. The former contended that such was due to prescription medicines she was taking for injuries caused by a car accident. As she was positive for several substances, she was placed under forced leave with pay for 10 mos.

Surrell filed a discrimination charge against CW before the Department of Fair Employment and Housing and provided her with right-to-sue letter. The latter advised her to obtain a federal right-to-sue letter from Equal Employment Opportunity Commission. Eventually, she filed a federal and state employment discrimination charge based on race, sex and age even in the absence of said federal letter.

Defendant CW and Cox, former Office Manager and Surrell’s supervisor, removed the suit to the federal district court. Eventually, court granted summary judgment to heir favor on all claims.

Surrell appealed the court’s grant of summary judgment.

The United States Court of Appeals for the Ninth Circuit (appeal court) ruled that Surrell can validly file a suit even without the federal right-to-sue letter. Despite such finding, it affirmed the grant of summary judgment on the following grounds:

• District court did not err in granting summary judgment against Surrell on discrimination, retaliation, and hostile work environment claims where CW offered legitimate nondiscriminatory and non retaliatory purposes for its actions.


• Court did not err in granting summary judgment against Surrell on physical-disability discrimination claim under California Fair Employment and Housing Act where she could not offer any further accommodation for disability that she had not been provided.

In conclusion, the appeal court ruled that the district court properly granted the summary judgment filed by the CW and Cox.