STEVE SCHIFANDO, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.
No. S106660
Supreme Court of California
Dec. 1, 2003.
1074
Law Offices of Robert M. Ball, Robert M. Ball and Loyst P. Fletcher for Plaintiff and Appellant.
Law Office of David J. Duchrow, David J. Duchrow and Robert E. Racine for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Appellant.
Charlotte E. Fishman for Equal Rights Advocates as Amicus Curiae on behalf of Plaintiff and Appellant.
Brad Seligman for The Impact Fund as Amicus Curiae on behalf of Plaintiff and Appellant.
Joannie Chang for Asian Law Caucus as Amicus Curiae on behalf of Plaintiff and Appellant.
Madalyn Frazzini for California School Employees Association as Amicus Curiae on behalf of Plaintiff and Appellant.
Beverly Tucker for California Teachers Association as Amicus Curiae on behalf of Plaintiff and Appellant.
Linda Kilb for Disability Rights Education and Defense Fund as Amicus Curiae on behalf of Plaintiff and Appellant.
Pat Shiu for Legal Aid Society/Employment Law Center as Amicus Curiae on behalf of Plaintiff and Appellant.
Vicky L. Barker for California Women‘s Law Center as Amicus Curiae on behalf of Plaintiff and Appellant.
James K. Hahn and Rockard J. Delgadillo, City Attorneys, Leslie E. Brown and Zna Portlock Houston, Assistant City Attorneys, Marie McTeague and Judith D. Thompson, Deputy City Attorneys, for Defendant and Respondent.
Best Best & Krieger, Arlene Prater and Alison D. Alpert for Sixty-One California Cities as Amici Curiae on behalf of Defendant and Respondent.
Jones Day, Elwood Lui, Scott D. Bertzyk and John A. Vogt for County of Los Angeles as Amicus Curiae on behalf of Defendant and Respondent.
Reed Smith Crosby Heafy, Paul D. Fogel, Raymond A. Cardozo; James E. Holst, John F. Lundberg, Eric K. Behrens and Jeffrey A. Blair for The Regents of the University of California as Amicus Curiae on behalf of Defendant and Respondent.
OPINION
CHIN, J.-We granted review to determine whether a city employee must exhaust both the administrative remedy that the California Fair Employment and Housing Act (
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) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) Courts must also consider judicially noticed matters. (Ibid.) In addition, we give the complaint a reasonable interpretation, and read it in context. (Ibid.) If the trial court has sustained the demurrer, we determine whether the complaint states facts sufficient to state a cause of action. If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. (Ibid.) If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. (Ibid.) The plaintiff has the burden of proving that an amendment would cure the defect. (Ibid.)
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. (
The legislative scheme created two administrative bodies: the Department (
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 ....” (
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,2 the provision at issue here, stated: “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
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) 26 Cal.2d 716, 722 [160 P.2d 816].) Filing the demand does not compel the Board of Civil Service Commissioners to take any action. (Id. at p. 721.) Rather, it affords the board an additional opportunity to consider the matter before the complainant resorts to litigation. (Ibid.) It also serves to “fix[] a time limit and formalities necessary as a basis for court action.” (Id. at p. 722.)
Under administrative mandamus procedure, the superior court may review a city board of civil service commissioners’ decision upholding a layoff, discharge, or suspension. (
C. State Personnel Bd.
We discuss State Personnel Bd., supra, 39 Cal.3d 422, because the shortcomings of the Civil Service Act (
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. (
“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, 39 Cal.3d at p. 432.)
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.[Citations.] By contrast, in reviewing Board decisions the superior court is restricted to a ‘substantial evidence’ standard of review under which ‘[f]actual determinations are not subject to reexamination in a trial de novo, but are to be upheld by a reviewing court if they are supported by substantial evidence.’ [Citation.]” (State Personnel Bd., supra, 39 Cal.3d. at pp. 432-433, fn. omitted.)
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) 212 Cal.App.3d 1271, 1284 [261 Cal.Rptr. 204] (Watson), the Court of Appeal stated, “We fail to understand why the State continues to urge on appeal as it did in the trial court that Watson may not prevail because she has not exhausted her civil service administrative remedies. She need not have done so as the State well knows because Watson had a choice between her civil service remedies and those provided by the [FEHA]. (
In Ruiz v. Department of Corrections (2000) 77 Cal.App.4th 891, 900 [92 Cal.Rptr.2d 139] (Ruiz), the Court of Appeal held that state employees may pursue their claims of employment discrimination with either the State Personnel Board or the Department, or both. Unlike Watson, supra, 212 Cal.App.3d at page 1284, Ruiz viewed State Personnel Bd., supra, 39 Cal.3d
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, 77 Cal.App.4th at p. 898.) We agree. In State Personnel Bd. we explained, “The purpose of the Civil Service Act is to ensure that appointments to state office are made not on the basis of patronage, but on the basis of merit, in order to preserve the economy and efficiency of state service. (See
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, 77 Cal.App.4th at p. 899.) The court also observed that affording state employees a choice between administrative remedies was in no way inconsistent with the doctrine of exhaustion of remedies, which, Ruiz concluded, requires only that a party comport with the chosen administrative forum‘s procedural requirements. (Ibid.)
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 (
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) 24 Cal.4th 61 [99 Cal.Rptr.2d 316, 5 P.3d 874] (Johnson), does not militate against this
Nothing in this conclusion disturbs our holding in Johnson, supra, 24 Cal.4th at page 72. We serve judicial economy by giving collateral estoppel effect to appropriate administrative findings. Johnson‘s requirement that employees exhaust judicial remedies ensures proper respect for administrative proceedings. It requires employees challenging administrative findings to do so in the appropriate forum, by filing a writ of administrative mandamus petition in superior court. Johnson also ensures that employees who choose to utilize internal procedures are not given a second “bite of the procedural
F. Cases Requiring Exhaustion of Internal Remedies
We have in the past and continue to recognize the value of internal remedies. In Westlake, supra, 17 Cal.3d 465, we held that a doctor must exhaust the internal remedies a private hospital offered before filing suit challenging the propriety of its decision to deny or withdraw her hospital privileges. Westlake noted that where the “policy considerations which support the imposition of a general exhaustion requirement remain compelling,” parties may be required to exhaust their administrative remedies even if they seek remedies not available through administrative action. (Id. at p. 476.)
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, 17 Cal.3d 465, concerned the exhaustion of private internal remedies, many courts have nevertheless relied on its reasoning to require exhaustion of ‘external’ administrative remedies in a variety of public contexts. In so doing, the courts have expressly or implicitly determined that the administrative agency possesses a specialized and specific body of expertise in a field that particularly equips it to handle the subject matter of the dispute.” (Rojo, supra, 52 Cal.3d at pp. 86-87.)
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, 52 Cal.3d at p. 86.) We explained, “a judge or jury is fully capable of determining whether discrimination has occurred.” (Id. at p. 88.) However, the Legislature did intend that the plaintiffs who desire to pursue an FEHA remedy to have the benefit of the “efficiency and expertise the Department and Commission bring to bear in investigating and determining [not reviewing determinations made by internal panels of the employer regarding] statutory discrimination cases... (Ibid.)
In Moreno v. Cairns (1942) 20 Cal.2d 531 [127 P.2d 914] (Moreno), we specifically recognized the exhaustion requirement with respect to the City
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.5
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.6
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.7
BAXTER, J., Dissenting.-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) (
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) 30 Cal.4th 278, 282 [132 Cal.Rptr.2d 713, 66 P.3d 718].) The majority‘s holding could effectively eviscerate the municipality‘s internal remedies for redressing employment discrimination afforded city employees under the city charter. This court has observed that in enacting the FEHA, “[t]he 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 supplement, not supplant or be supplanted by, existing antidiscrimination remedies, in order to give employees the maximum opportunity to vindicate their civil rights against discrimination ....” (State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 431 [217 Cal.Rptr. 16, 703 P.2d 354], italics added (State Personnel Bd.).) I conclude the Legislature did not intend the FEHA to supplant all local jurisdiction and decisionmaking authority over a city employee‘s employment discrimination claims, much less abrogate the venerable rule of exhaustion of administrative remedies as applied in this context.
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) 17 Cal.2d 280, 292 [109 P.2d 942] (Abelleira).) Abelleira explained that the requirement of exhaustion of administrative remedies is “a jurisdictional prerequisite to resort to the courts.” (Id. at p. 293.) ” “The administrative tribunal is created by law to adjudicate the issue sought to be presented to the court. The claim or “cause of action” is within the special jurisdiction of the administrative tribunal, and the courts may act only to review the final administrative determination. If a court allowed a suit to be maintained prior to such final determination, it would be interfering with the subject matter jurisdiction of another tribunal. Accordingly, the exhaustion of an administrative remedy has been held jurisdictional in California.” ” (Lopez v. Civil Service Com. (1991) 232 Cal.App.3d 307, 311 [283 Cal.Rptr. 447], citing 3 Witkin, Cal. Procedure (3d ed. 1985) Actions, § 234, p. 265.)
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) 21 Cal.4th 489, 501 [87 Cal.Rptr.2d 702, 981 P.2d 543].) It can often lead to the most prompt and economical means of resolving disputes, and even where complete relief is not obtained, it can serve to reduce the scope of litigation or possibly avoid it altogether. (See Rojo, supra, 52 Cal.3d at p. 86.) And where a dispute is unavoidably headed to court, the requirement that statutory administrative remedies first be exhausted affords the agency or entity implicated in the claim an opportunity to apply its expertise, ensure the development of a complete factual record, and assist or help focus the subsequent judicial review process. (Sierra Club, supra, 21 Cal.4th at p. 501.)
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
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
The Legislature likewise may be presumed to have been aware, at the time it enacted the
Neither the
Nor does the circumstance that the
Plaintiff relies on
The majority agrees with plaintiff that, “although the
We have repeatedly recognized in many of this court‘s decisions that the
In Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 [131 Cal.Rptr. 90, 551 P.2d 410] (Westlake), this court held that a doctor must exhaust the internal remedies afforded by a private hospital before filing an action in court challenging the propriety of its decision to deny or withdraw hospital privileges. Observing that the plaintiff in Westlake was seeking only money damages, and not reinstatement, we explained, “Nevertheless, the policy considerations which support the imposition of a general exhaustion requirement remain compelling in this context. In the first place, even if a plaintiff no longer wishes to be either reinstated or admitted to the organization, an exhaustion of remedies requirement serves the salutary function of eliminating or mitigating damages. If an organization is given the opportunity quickly to determine through the operation of its internal procedures that it has committed error, it may be able to minimize, and sometimes eliminate, any monetary injury to the plaintiff by immediately reversing its initial decision and affording the aggrieved party all membership rights; an individual should not be permitted to increase damages by foregoing available internal remedies. (See Summers, Legal Limitations on Union Discipline (1951) 64 Harv.L.Rev. 1049, 1089.) [][] Moreover, by insisting upon exhaustion even in these circumstances, courts accord recognition to the ‘expertise’ of the organization‘s quasi-judicial tribunal, permitting it to adjudicate the
Subsequently, in Rojo, we 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, 17 Cal.3d 465, concerned the exhaustion of private internal remedies, many courts have nevertheless relied on its reasoning to require exhaustion of ‘external’ administrative remedies in a variety of public contexts. In so doing, the courts . . . have expressly or implicitly determined that the administrative agency possesses a specialized and specific body of expertise in a field that particularly equips it to handle the subject matter of the dispute.” (Rojo, supra, 52 Cal.3d at pp. 86-87, italics added.)
We concluded in Rojo that, “By expressly disclaiming a purpose to repeal other applicable state laws ([
The majority chooses to read the ambiguous language of
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
I agree with the observation of the Court of Appeal below that “[a] city employee can pursue the administrative remedies provided by
The majority relies on the holdings in Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1284 [261 Cal.Rptr. 204] (Watson), and Ruiz v. Department of Corrections (2000) 77 Cal.App.4th 891 [92 Cal.Rptr.2d 139] (Ruiz), in support of its conclusion that plaintiff could file his FEHA-based action in superior court without first exhausting his internal remedies under the city charter‘s employee grievance procedures. I would not endorse the holdings in Watson and Ruiz, but would instead disapprove those decisions, as they both rest on a flawed reading of this court‘s holding in State Personnel Bd., supra, 39 Cal.3d 422.
The Watson court held that plaintiff, a state civil service employee, “had a choice between her civil service remedies and those provided by [
The majority suggests that, “The opportunity for all public and private employees to vindicate civil rights is the primary intent of the
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,2 whether the employee desires to press a common law employment discrimination claim or an FEHA-based discrimination claim, or both, in court—the administrative remedy that must first be exhausted in every instance before litigation may be commenced is the internal remedy provided by the public-entity employer on behalf of, and for the benefit of, its employees.3 The majority‘s conclusion to the contrary will only thwart, not serve, the Legislature‘s underlying purpose and intent in enacting the
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, 24 Cal.4th at p. 73 (Johnson).) We explained in State Personnel Bd. that, “an employee complaining before the [State Personnel] Board is asserting a private right, while the [Department] is a ‘public prosecutor . . . test[ing] a public right.’ [Citation.] The employee‘s choice to assert the former should not bar litigation of the latter right.” (State Personnel Bd., supra, 39 Cal.3d at p. 444.) Thus, we determined in State Personnel Bd. that “a decision against an individual in an administrative proceeding does not preclude a public agency, when acting as a public prosecutor, from asserting a public right.” (Johnson, supra, 24 Cal.4th at p. 74.)
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, 17 Cal.2d at p. 293) requiring plaintiff to first exhaust his internal administrative remedies available to him under the city charter as a precondition to filing a disability discrimination action against the city as employer in superior court.
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
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) 31 Cal.4th 1026 [6 Cal.Rptr.3d 441, 79 P.3d 556] (State Department of Health Services). That case involved the provisions of the
We explained in State Department of Health Services that, “The avoidable consequences doctrine is well established and broadly applied, and nothing in the
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, J., concurred.
On December 23, 2003, the opinion was modified to read as printed above.