Lead Opinion
Opinion
We granted review to determine whether a city employee must exhaust both the administrative remedy that the California Fair Employment and Housing Act (Gov. Code,
I. FACTUAL BACKGROUND
Plaintiff Steve Schifando filed a complaint against the City of Los Angeles (the City) in Los Angeles County Superior Court, alleging employment discrimination based on physical disability under the FEHA. The complaint alleges the following: Schifando worked for defendant City’s Parks and Recreation Department as a storekeeper. He suffered from severe hypertension that made him dizzy and lightheaded in stressful situations. He informed two supervisors of his condition.
Schifando met with the two supervisors in August 1998 to discuss his objections to recent changes in his job responsibilities. They argued with him and tried to get him to “blow his top” due to his medical condition. During the meeting, he began to sweat profusely, his face turned red, his chest felt constricted, and he had difficulty breathing. Finally, he exclaimed, “I can’t take it anymore; I quit!” The supervisors asked him to “put it in writing” and provided a piece of paper on which Schifando wrote “I quit.” The supervisors then left and returned with a blank “notice of vacancy and/or request for certification form.” They did not complete the form or explain it to Schifando, but asked him to sign it. He complied because he sought to avoid what he considered further dangerous confrontation. Schifando reconciled with one of the supervisors, but the other supervisor processed the signed “certification,” which Schifando learned was actually a resignation form. The complaint implies that the City terminated Schifando’s employment in August 1998 because he signed the resignation form. Although Schifando alleged that he had received a “right to sue” letter from the Department, and the record shows he did receive it, his complaint failed to observe that he received the notice in June 1999, within one year of his resignation. •
The City demurred to the complaint on the grounds that Schifando did not sufficiently allege that he was disabled or that he was able to perform the essential functions of his job, either with or without reasonable accommodations. The City also argued that the complaint failed to allege that Schifando had filed his administrative complaint with the Department by August 1999, as required by law. The trial court sustained the demurrer on the second ground and dismissed the action without leave to amend. Schifando filed a timely appeal. For the first time on appeal, the City alleged that Schifando had failed to exhaust his administrative remedies under the Charter of the
II. DISCUSSION
A. Procedural Background
When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint’s properly pleaded or implied factual allegations. (Blank v. Kirwan (1985)
B. Administrative Remedies
1. FEHA Remedies
The California Fair Employment Practices Act was enacted in 1959 (former Lab. Code, § 1410 et seq., repealed by Stats. 1980, ch. 992, § 11, p. 3166) and recodified in 1980 in conjunction with the Rumford Fair Housing Act (former Health & Saf. Code, § 35700 et seq., repealed by Stats. 1980, ch. 992, § 8, p. 3166) to form the FEHA. (Stats. 1980, ch. 992, § 4, p. 3140.) The FEHA establishes as a civil right a person’s freedom from employment discrimination based on disability. (Gov. Code, § 12921.) Discrimination because of disability is against public policy (Gov. Code, § 12920) and is an unlawful employment practice. (Gov. Code, § 12940.) The legislative scheme created two administrative bodies: the Department (Gov. Code, § 12901), which investigates, conciliates, and seeks redress of claimed discrimination (Gov. Code, § 12930), and the Fair Employment and Housing Commission (the Commission) (Gov. Code, § 12903), which performs adjudicatory and rulemaking functions (Gov. Code, § 12935).
Employees who believe they have suffered discrimination under the FEHA may file complaints with the Department within a one-year period.
The Legislature intended the FEHA’s administrative system “to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of [the act], exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political subdivision of the state . . . .” (§ 12993, subd. (c).) In other words, although the FEHA does not limit the application of other state statutes (e.g., Civ. Code, § 51.7), or constitutional provisions involving discrimination, it expressly preempts local governmental laws, regulations, and procedures that would affect the rights included in its provisions. It provides a one-year grace period for pending local enforcement proceedings. (Gov. Code, § 12960; see Rojo v. Kliger (1990)
2. City Charter Remedies
The City Charter directs employees who believe they have been wrongfully suspended, laid off, or discharged to follow certain procedures. Former section 112 1/2 of article IX,
The demand requirement has been described as “somewhat analogous to the requirement of a petition for a rehearing addressed to the board.” (Steen v. Board of Civil Service Commrs. (1945)
Under administrative mandamus procedure, the superior court may review a city board of civil service commissioners’ decision upholding a layoff, discharge, or suspension. (Code Civ. Proc., § 1094.5.) However, assuming no vested right is involved, the court does not review the decision de novo, but under a substantial evidence standard. (See State Personnel Bd., supra,
C. State Personnel Bd.
We discuss State Personnel Bd., supra,
State Personnel Bd. observed, “The [Department] provides enforcement services to discrimination complainants that do not have a counterpart in the civil service system. Under the FEHA, the Department bears the expense of investigating, conciliating and, where necessary, prosecuting the action on behalf of the claimant. (§§ 12961-12963, 12963.1-12963.7.) This includes the services of an attorney from the Department to try the case at no expense to the claimant. (§ 12969.) If the Commission decides in the claimant’s favor, the Department must thereafter conduct a compliance review to see that the employer is fully obeying the Commission’s order. (§ 12973.)” (State Personnel Bd., supra,
“These enforcement services are not available under the Civil Service Act. Appeals filed with the [State Personnel] Board are initially investigated and conciliated not by a neutral, outside agency like the [Department], but by the same state agency (the employer) that is charged with discrimination. (See Cal. Admin. Code, tit. 2, §§ 547.1-547.2.) . . . Moreover, while complainants may hire an attorney to represent them at a Board hearing (Cal. Admin. Code, tit. 2, § 73), they must bear the cost themselves.” (State Personnel Bd., supra,
Similarly, under both former section 112 1/2 of title IX and current article X, section 1017 of the City Charter, the City is both the party accused of wrongdoing and the party charged with investigating the wrongdoing. No provision is made in the City Charter for the appointment of an attorney at no cost to the employee.
“The procedural rights afforded under the FEHA are also quite different from [State Personnel] Board procedures. Beginning with the filing of a complaint, the Board’s internal rules require that appeal from an adverse employment decision be filed within 30 days (Board rule 64), whereas the FEHA provides a period of one year in which to file. (§ 12960.) Next, complainants under the FEHA have a private right of action in superior court—a right not afforded by the Civil Service Act. (§ 12965, subd. (b).) If their case is tried before the [Commission] instead of in superior court, and an adverse decision is reached, the superior court will independently review the evidence rather than deferring to the [Commission]’s adverse decision.
The City Charter at issue here was drafted by a board of freeholders in 1924. (Ann. City Charter (1973 ed.) p. iii.) The voters ratified the charter in January 1925, and it took effect on July 1, 1925. (Ibid.) Section 112 1/2 was added to the charter on April 4, 1937, and became effective April 29, 1937. (Ann. City Charter, supra, p. iii.) The charter focused on the remedies of compensation and reinstatement only, and required those claims to be “presented in writing within ninety days following the date on which it is claimed that such person was first illegally, wrongfully or invalidly laid off, suspended or discharged” (City Charter, former art. IX, § 112 1/2), a period substantially shorter than the one year afforded to FEHA complainants. Practically speaking, this means that the City’s Board of Civil Service Commissioners would hear the matter before the Department would. The court reviewing a petition for writ of administrative mandamus would give deference to the findings of the City’s board. If the reviewing court upheld the City board’s decision, its findings would then be res judicata on any claims filed after the Department issued a right to sue letter. If so, aggrieved employees would not have had the chance to develop their cases (through adequate discovery, presentation of evidence, and cross-examination, rights not guaranteed at the City’s hearing) to the extent the Legislature intended.
In State Personnel Bd., we emphasized that “[t]he most fundamental difference between the two forums ... is the nature of the forums themselves. The [Commission] is a neutral body, disinterested in the controversy between employer and employee. By contrast, where [State Personnel] Board standards are challenged as discriminatory, the Board occupies the roles of both defendant and judge. Internal review of challenged standards is a healthy endeavor for any agency, and the Board should not be deprived of this opportunity. However, the Legislature has provided for more than this for state, [city and private] employees [alike]. It has provided for review of allegedly discriminatory standards by an independent adjudicatory body—the [Commission].” (State Personnel Bd., supra, 39 Cal.3d at p. 434, fn. omitted.)
Requiring City’s employees to pursue remedies under both the City Charter and through the Department would frustrate the Legislature’s intent. State Personnel Bd. emphasized that “The Legislature’s intent was to give public employees the same tools in the battle against employment discrimination that are available to private employees. The FEHA was meant to
D. Watson and Ruiz
Two Court of Appeal decisions, both relying on State Personnel Bd., concluded that a civil service employee may choose between the two administrative forums—the State Personnel Board or the Department. In Watson v. Department of Rehabilitation (1989)
In Ruiz v. Department of Corrections (2000)
Ruiz further reasoned that our “attention [in State Personnel Bd.] on the different purposes of the two agencies suggests it would be proper for a potential claimant to consider which forum would be more appropriate for his or her cause of action.” (Ruiz, supra,
Ruiz also explored the practical considerations a state employee might face if we required employees to always exhaust their FEHA and state Civil Service Act remedies. As Ruiz explained, imposing this requirement would present a “procedural minefield. Not only must the state employee, as well as the state employer, struggle to comply with the substantive and procedural
Ruiz emphasized that if the court were to require state employees to exhaust their administrative remedies at the State Personnel Board, regardless of their desire to pursue the same claims with other agencies, it would be imposing on them a burden that private employees do not share, raising potential equal protection issues. (Ruiz, supra,
Even if we were to assume that former article IX, section 112 1/2, now article X, section 1017 of the City Charter is on equal footing with the Civil Service Act, we see no reason to distinguish the present action from Ruiz. As the Court of Appeal below acknowledged, the pursuit of separate administrative remedies may result in inconsistent administrative findings or adjudications. The court refused, however, to opine as to how to resolve the conflict should it occur, concluding instead that the possibility of conflict does not outweigh the benefits of requiring exhaustion of both administrative remedies.
We find the Court of Appeal’s reasoning unpersuasive, and conclude the approach we adopted in State Personnel Bd., and the Court of Appeal adopted in Ruiz and other cases is the better one. A city employee would indeed tread onto a “procedural minefield” if a claim was filed with the Department at the same time remedies were pursued under the City Charter.
We note an additional reason not to impose the internal exhaustion requirement in this case. As an employee of the City, Schifando is not governed by the Civil Service Act. Therefore, his principal statutory remedy (in addition to the general Unruh Civil Rights Act provisions (Civ. Code, § 51.7 et seq.) under California law to redress the asserted discrimination he suffered is to file an FEHA claim. As we have recognized, the FEHA was enacted to expand, not to limit employees’ rights to remedy discrimination. (Rojo, supra,
On a final note, we are not concerned that all public employees, and in particular those employees with a routine administrative claim for compensation or reinstatement will choose to bypass the summary and expeditious procedures and remedies the City Charter provides in order to proceed directly to a jury trial to seek an award of compensatory or punitive damages.
E. Johnson
Our decision in Johnson v. City of Loma Linda (2000)
Nothing in this conclusion disturbs our holding in Johnson, supra,
F. Cases Requiring Exhaustion of Internal Remedies
We have in the past and continue to recognize the value of internal remedies. In Westlake, supra,
Rojo explained that “[t]he ‘context’ to which Westlake properly 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. [Citations.] [][] The reason for the exhaustion requirement in this context is plain. . . . ‘[W]e believe as a matter of policy that the association itself should in the first instance pass on the merits of an individual’s application rather than shift this burden to the courts.’ . . . [][] Though Westlake, supra,
Rojo observed that the Legislature did not intend to require employees filing non-FEHA discrimination claims in court to exhaust the Department’s remedies. (Rojo, supra,
In Moreno v. Cairns (1942)
The gist of Westlake, Rojo, and Moreno is a respect for internal grievance procedures and the exhaustion requirement where the Legislature has not specifically mandated its own administrative review process, as in the FEHA.
This court, however, has never held that exhaustion of an internal employer procedure was required where an employee made a claim under FEHA or another statutory scheme containing its own exhaustion prerequisite. The distinction is compelling.
III. CONCLUSION
We hold that municipal employees who claim they have suffered employment-related discrimination need not exhaust City Charter internal remedies prior to filing a complaint with the Department. We recognize the existence of potential procedural issues that might arise in the situation where an employee chooses to pursue both avenues of redress, but those issues are not before us.
Therefore, based on the principles discussed above, the Court of Appeal erred in affirming the trial court’s judgment. We reverse the judgment of the Court of Appeal and remand the matter for further proceedings consistent with our conclusion.
Notes
All further statutory references are to the Government Code unless otherwise indicated.
On July 1, 2000, the City Charter was amended and article IX, section 112 1/2 was modified and renumbered, but the new provision did not effect material changes. (See City Charter, art. X, § 1017 [Employment Provisions—Demand for Reinstatement; Claim for Compensation].)
Any argument the dissent makes that our holding effectively supplants the City Charter’s remedies with remedies available under the FEHA is without merit. Our holding has the effect of supplementing a city employee’s avenue for redress with the FEHA alternative. Government employees remain free to pursue a city’s internal remedy. Having chosen to file a claim with the Department, however, plaintiff is not required also to pursue the City remedy for discriminatory employment practices. Requiring him to do so would have the effect of supplanting his FEHA option, given the City’s less rigorous procedural safeguards and the substantial evidence standard of review its findings would be accorded in a later proceeding.
Shortly before oral argument, amicus curiae County of Los Angeles, in support of respondent, filed a request for judicial notice of two specific items: Assembly Bill No. 2892 (2001-2002 Reg. Sess.) section 1, and the Governor’s veto of the proposed legislation on September 28, 2002. We do not find the materials particularly supportive of respondent’s cause or relevant to the action, and therefore deny the request. (Evid. Code, §§ 452, subd. (c), 459.)
After argument, County of Los Angeles also requested the court judicially notice the Ninth Circuit’s opinion in E.E.O.C. v. Luce, Forward, Hamilton & Scripps (9th Cir. 2003)
The same amicus curiae asserts that principles discussed in County of Riverside v. Superior Court (2003)
As noted, the FEHA provides its own administrative remedies, a fact the dissent overlooks. The dissent’s questionable analysis in turn, leads it to criticize sound precedent from our own appellate courts (including Ruiz, supra,
One note of caution is required. In the present action, Schifando filed the FEHA claim only. We therefore need not decide whether his failure to exhaust the City’s procedures would have barred any other claim based on the same acts by the City.
Because we reverse the Court of Appeal’s judgment, it is unnecessary for us to address Schifando’s claim that the City Charter violates the equal protection clauses of the state or federal Constitution, or to resolve the remaining issue whether the Court of Appeal abused its discretion in sustaining the demurrer on a new legal theory without leave to amend.
Dissenting Opinion
The issue in this case is whether an employee who believes he has suffered disability discrimination as a result of a coerced resignation at the hands of a city employer must exhaust both the internal administrative remedy provided for such claims in the city charter and the separate administrative remedy provided by the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) before filing an FEHA-based action in superior court. The majority concludes the employee need not exhaust both administrative remedies, and that receiving a Department of Fair Employment and Housing (Department) “right to sue” letter is a sufficient prerequisite to filing a disability discrimination action in court. I disagree.
The majority’s holding today will authorize, if not encourage, public employees to forgo the very comprehensive internal grievance procedures that are designed to protect and vindicate their employment rights— procedures that also serve the dual purpose of affording public entities, such as charter cities and counties, the opportunity to exercise their constitutionally vested decisionmaking authority over matters of public employment, including employee appointment, compensation, tenure, and discharge or removal. (See County of Riverside v. Superior Court (2000)
To the contrary, the specific city charter provision here in issue required plaintiff to avail himself of the city’s internal employee grievance procedures as a condition precedent to filing suit in court long before the FEHA and its predecessor statute were enacted. Had the Legislature intended to preempt public municipalities from exercising their constitutional authority over their employees’ labor grievances in the first instance, and at the same time abrogate the rule requiring exhaustion of administrative remedies in this
It is a settled and fundamental rule of procedure that “where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.” (Abelleira v. District Court of Appeal (1941)
The doctrine of exhaustion of administrative remedies serves several important functions. It gives the administrative body with jurisdiction over a claim an opportunity to redress the claimed wrong, or possibly mitigate the claimant’s damages, short of costly litigation in the courts. (Sierra Club v. San Joaquin Local Agency Formation Com. (1999)
The Charter of the City of Los Angeles (city charter) requires employees who claim they have been wrongfully suspended, laid off or discharged to follow certain procedures in perfecting a discrimination claim against the city. Time limits are imposed for the making of demands for reinstatement or claims for compensation. Former section 112 1/2 of article IX of the city charter (now renumbered section 1017 of article X, but materially unchanged), the provision at issue herein, provided: “Whenever it is claimed by any person that he has been unlawfully suspended, laid off or discharged, and that such lay-off, suspension or discharge is ineffective for any reason, any claim for compensation must be made and a demand for reinstatement must be presented in writing within ninety days following the date on which it is claimed that such person was first illegally, wrongfully or invalidly laid off, suspended or discharged. Such demand for reinstatement must be filed with the Board of Civil Service Commissioners and such claim for compensation for such allegedly wrongful, illegal or erroneous discharge must be filed with the City Clerk. Failure to file such demand for reinstatement within the time herein specified shall be a bar to any action to compel such reinstatement and proof of filing such a demand for reinstatement must be completed and proved a condition precedent to the maintenance of any action for reinstatement. Proof of filing the claim for compensation within the time and in the manner herein specified shall be a condition precedent to any recovery of wages or salary claimed to be due on account of said lay-off, suspension or discharge.”
The California Fair Employment Practices Act was enacted in 1959 (former Lab. Code, § 1410 et seq., repealed by Stats. 1980, ch. 992, § 11, p. 3166) and recodified in 1980 in conjunction with the Rumford Fair Housing Act (former Health & Saf. Code, § 35700 et seq., repealed by Stats. 1980, ch. 992, § 8, p. 3166) to form the FEHA. (Stats. 1980, ch. 992, § 4, p. 3140.) As applicable here, the FEHA declares disability discrimination to be an unlawful employment practice in contravention of public policy, and establishes as a civil right a person’s freedom from employment discrimination based on disability. (Gov. Code, §§ 12920, 12921, 12940.)
The rule requiring exhaustion of administrative remedies was well settled at the time the Legislature enacted the Fair Employment Practices Act and, 20 years later, recodified its provisions in the FEHA. This court’s decision in Moreno v. Cairns, which recognized the exhaustion rule’s applicability under the very city charter provision here in issue, was likewise established law when the FEHA and its predecessor statute were enacted. Under settled principles of statutory construction we must presume that the Legislature, at the time it enacted the FEHA, was aware of the well-established exhaustion rule, as well as decisions of this court (e.g., Steen v. Board of Civil Service Commrs. (1945)
The Legislature likewise may be presumed to have been aware, at the time it enacted the FEHA, of the thousands upon thousands of public employees across this state who fell within the protection of comprehensive remedial internal grievance procedures designed to resolve their employment disputes
Neither the FEHA nor its predecessor statute contains any language suggesting that, in the context of redress of public-employee grievance claims, the Legislature intended to abrogate the long-standing rule requiring exhaustion of internal administrative remedies before suit can be filed in court, and to instead permit public employees to bypass their employers’ internal remedies and grievance procedures by bringing an FEHA-based action directly in court in the first instance. Under settled rules of statutory construction, the Legislature’s failure to expressly provide for such an exception “is presumed to be intentional.” (Fierro v. State Bd. of Control (1987)
Nor does the circumstance that the FEHA has its own separate exhaustion requirements support the majority’s conclusion that the Legislature intended to exempt public employees from the requirement that they first exhaust their public employers’ internal remedies before bringing suit in court. This court’s decision in State Personnel Bd., supra,
Plaintiff relies on Government Code section 12993, subdivision (c) (section 12993(c)), an FEHA provision, as evidence that the Legislature intended to exempt public employees who bypass their employers’ internal grievance procedures and opt to file an FEHA-based action directly in superior court from the rule requiring exhaustion of administrative remedies. Section 12993(c) provides, in pertinent part, “[I]t is the intention of the Legislature to occupy the field of regulation of discrimination in employment and housing
The majority agrees with plaintiff that, “although the FEHA does not limit the application of other state statutes . . . , or constitutional provisions involving discrimination, [section 12993(c)] expressly preempts local governmental laws, regulations, and procedures that would affect the rights included in its provisions.” (Maj. opn., ante, at p. 1082.) I do not so read section 12993(c). As State Personnel Bd. teaches, the FEHA was enacted to supplement existing antidiscrimination remedies, not supplant them. Nor is there any compelling reason to conclude that requiring public employees to avail themselves of their internal administrative remedies before initiating costly and burdensome litigation in court would chill the rights and remedies available to them under the FEHA.
We have repeatedly recognized in many of this court’s decisions that the FEHA was enacted to expand, not to limit, employees’ rights to seek redress for employment discrimination. (See, e.g., Rojo, supra,
In Westlake Community Hosp. v. Superior Court (1976)
Subsequently, in Rojo, we explained that, “[t]he ‘context’ to which West-lake properly 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. [Citations.] HI The reason for the exhaustion requirement in this context is plain. . . . ‘[W]e believe as a matter of policy that the association itself should in the first instance pass on the merits of an individual’s application rather than shift this burden to the courts.’ . . . [f] Though Westlake, supra,
We concluded in Rojo that, “By expressly disclaiming a purpose to repeal other applicable state laws ([Gov. Code,] § 12993, subd. (a)), we believe the Legislature has manifested an intent to amplify, not abrogate, an employee’s common law remedies for injuries relating to employment discrimination. Had the Legislature intended otherwise, it plainly knew how to do so. [Citations].” (Rojo, supra, 52 Cal.3d at p. 75.) We farther acknowledged the ambiguity of section 12993(c), the provision relied on by plaintiff and the majority here for the proposition that in enacting the FEHA, the Legislature intended to preempt the requirement that a public employee exhaust the public entity’s internal grievance procedures. Rojo explains, “As written, [section 12993,] subdivision (c) is ambiguous. First, the phrase ‘occupy the field’ may convey displacement either of all other law, without limitation [citations], or, alternatively, of only local law by a higher law [citations]. [][] Second, the stated legislative intent to occupy the field ‘exclusive of all other laws banning discrimination ... by any city, city and county [etc.]’ (§ 12993(c), italics added) can be read to mean ‘not including’ local laws (see, e.g., Webster’s New Internat. Dict. (2d ed. 1935) p. 890, col. 3), thereby removing them from the preemptive effect of the statute, or, as the parties assume, ‘to the exclusion of’ local laws, thereby preempting such laws.
The majority chooses to read the ambiguous language of section 12993(c) as conclusively preemptive: “In other words, although the FEHA does not limit the application of other state statutes (e.g., Civ. Code, § 51.7), or constitutional provisions involving discrimination, it expressly preempts local governmental laws, regulations, and procedures that would affect the rights included in its provisions.” (Maj. opn., ante, at p. 1082, italics added.) Therein lies the rub. I part company with the majority when it concludes the FEHA administrative remedy must be deemed an exclusive one because, to conclude otherwise, i.e., to give force and effect to the internal exhaustion requirements under the city charter, would necessarily detrimentally impact plaintiff’s rights under the FEHA. Not so.
That the Legislature sought to preserve for public employees several avenues of redress to remedy employment discrimination claims sheds no light on the order in which the Legislature envisioned the employee would pursue available administrative remedies. There is no inherent inconsistency between, on the one hand, the circumstance that a municipal employee has the right to file and pursue an internal employment discrimination grievance with his or her employer, an FEHA-based claim with the Department, and, if necessary, a civil action in court, and on the other hand, a rule requiring the employee to exhaust his or her internal administrative remedy as a prerequisite to filing suit in court. Once again, because the rule requiring exhaustion of internal administrative remedies as a condition to filing a court action was well established when the Legislature enacted the FEHA, the failure of the Legislature to create an express exception to that long-standing rule is evidence it did not intend any such exception.
I agree with the observation of the Court of Appeal below that “[a] city employee can pursue the administrative remedies provided by FEHA and the city charter simultaneously. The remedies do not conflict with each other, and pursuit of one would not undermine or impair pursuit of the other. Each requires filing a claim or claims with an administrative agency, and the pursuit of both is not an undue burden, particularly when either remedy could provide complete or partial relief, obviate the need for litigation or reduce the scope of litigation, develop a more complete factual record, and draw upon agency expertise. In these circumstances, the pursuit of two administrative remedies, each of which independently offers advantages, increases the potential for judicial economy and other benefits.” I fail to see why a city employee would necessarily “tread onto a ‘procedural minefield’ if a claim
The majority relies on the holdings in Watson v. Department of Rehabilitation (1989)
The Watson court held that plaintiff, a state civil service employee, “had a choice between her civil service remedies and those provided by [FEHA],” citing this court’s decision in State Personnel Bd., with little more, as authority for that conclusion. (Watson, supra,
The majority suggests that, “The opportunity for all public and private employees to vindicate civil rights is the primary intent of the FEHA, and as Ruiz observed, this is why plaintiffs have a choice between their civil service remedies and those provided by the FEHA. (Ruiz, supra,
There is, however, one important caveat—the long-standing rule that one cannot pursue a judicial remedy unless he or she has first exhausted internal administrative remedies. And for the many practical reasons noted above,
Much emphasis has been placed on the circumstance that the Department has issued a right-to-sue letter to plaintiff in this case. But plaintiff did not ascend to a fog-shrouded mountaintop and return with a stone tablet commanding him to file suit in this matter. As we explained in Rojo, supra, 52 Cal.3d at pages 83-84, compliance with the exhaustion requirement “is not
In State Personnel Bd., we “stressed the distinction between an employee’s assertion of a private right before an administrative agency and the [Department’s] acting as a public prosecutor asserting a public right.” (Johnson v. City of Loma Linda, supra,
In light of the teachings of Rojo, State Personnel Bd., and Johnson, we might reasonably characterize the Department’s issuance of a right-to-sue letter as reflective of the Department’s determination to take no action or pass on the opportunity to pursue the public-right aspect of an employee’s claim, leaving the employee to his or her private-right remedies, including suit in court. Our prior cases explain that the Department, at most, shares concurrent jurisdiction with public-entity employers, which are constitutionally vested with decision making authority over their employees’ labor-related grievances in the first instance. I would treat the Department’s issuance of a right-to-sue letter in this case as an indication that the Department has determined to take no further action in the matter, relegating plaintiff to his private right remedies, including a court action. That said, the Department has no authority to interfere with or undercut the long-standing jurisdictional rule (Abelleira, supra,
We unanimously affirmed the judgment of the Court of Appeal in Johnson, holding that, “when ... a public employee pursues administrative civil service remedies, receives an adverse finding, and fails to have the finding set aside through judicial review procedures, the adverse finding is binding on discrimination claims under the FEHA.” (Johnson, supra,
Johnson therefore stands for the proposition that where a public employee invokes his or her employer’s internal grievance procedures, the employee must pursue and perfect that process, and timely seek judicial mandamus review from any adverse decision, as a precondition to filing an FEHA-based action in superior court. Johnson’s exhaustion of judicial remedies rule serves to preserve the integrity of the employer’s internal grievance procedures.
A similar holding here respecting the exhaustion of available internal administrative remedies would serve the same purpose and goal. Instead, under the majority’s holding today, the spirit, if not the letter of our decision in Johnson has been gutted. Given Johnson’s requirement that an employee pursue and perfect the internal grievance process through the final stage of judicial mandamus review as a precondition to filing an FEHA-based discrimination action in superior court, and given that, under the majority’s
Last, the majority’s holding today exempting all FEHA plaintiffs from their obligation to exhaust internal administrative remedies before going to court is patently at odds with our unanimous decision filed just one week ago in State Department of Health Services v. Superior Court (2003)
We explained in State Department of Health Services that, “The avoidable consequences doctrine is well established and broadly applied, and nothing in the FEHA’s language and structure indicates that the Legislature intended to abrogate this fundamental legal principle. On the contrary, failure to apply the avoidable consequences doctrine to FEHA sexual harassment claims could undermine a basic goal of the FEHA—to make employers the first line of defense against sexual harassment in the workplace. A rule making employers liable even for those damages that an employee could have avoided with reasonable effort and without undue risk, expense, or humiliation would significantly weaken the incentive for employers to establish effective workplace remedies against sexual harassment.” (State Department of Health Services, supra,
Similar to the purpose served by the doctrine of avoidable consequences, the rule requiring exhaustion of internal administrative remedies makes employers, and in the case of public entity employers, their civil service commissions, the first line of defense against employment discrimination practices in the workplace. As explained above, the exhaustion of internal remedies requirement gives the administrative body with jurisdiction over a
To my mind, the analogy between the purposes served by the doctrine of avoidable consequences and the rule requiring exhaustion of internal administrative remedies is striking, and the disparity between the holdings reached by a majority of this court in State Department of Health Services and this case—decisions filed just one week apart—equally as baffling. Had plaintiff here timely and promptly pursued the city’s internal grievance procedures, the result could have been drastically different for both parties. The city’s Board of Civil Service Commissioners might have found the city responsible for plaintiff’s supervisor’s actions and directed the city to reinstate plaintiff with backpay. Although we are not here in a position to pass judgment on the merits of plaintiff’s claim, the point is simply that had plaintiff pursued his internal remedy with the city as required by law until today, both plaintiff and the city might have settled this matter amicably and avoided costly and burdensome litigation altogether. Instead, under the majority’s holding, the road to possible conciliation, amicable settlement, or mitigation of damages will first have to pass through the courthouse.
For all of these reasons, I respectfully dissent.
Brown, L, concurred.
On December 23, 2003, the opinion was modified to read as printed above.
The Court of Appeal forthrightly acknowledged that the pursuit of separate administrative remedies could theoretically result in inconsistent administrative findings or adjudications. The majority finds faults with that conclusion, suggesting the Court of Appeal “refused ... to opine as to how to resolve the conflict should it occur, concluding instead that the possibility of conflict does not outweigh the benefits of requiring exhaustion of both administrative remedies.” (Maj. opn., ante, at p. 1088.) Does our majority do any better when it likewise concludes, “We recognize the existence of potential procedural issues that might arise in the situation where an employee chooses to pursue both avenues of redress, but those issues are not before us”? (Maj. opn., ante, at p. 1092.) This case presents a complex question of administrative law. There are undoubtedly conflicts and questions that could arise where multiple administrative remedies are simultaneously pursued. Both the majority here, and the Court of Appeal below are correct in concluding that such speculative matters are most appropriately left for another day, when the facts of an actual case in controversy present them for resolution.
“In cases appropriate for administrative resolution, the exhaustion requirement serves the important policy interests embodied in the act of resolving disputes and eliminating unlawful employment practices by conciliation (see Yurick v. Superior Court (1989)
Where, as here, the employee seeks to pursue an FEHA-based action in superior court, then of course the separate administrative remedy provided under the FEHA must be exhausted as well, pursuant to the provisions of the FEHA.
In Swartzendruber v. City of San Diego (1992)