Filed 12/1/03
IN THE SUPREME COURT OF CALIFORNIA
STEVE SCHIFANDO,
Plaintiff and Appellant,
S106660
v.
Ct.App. 2/3 B142999
CITY OF LOS ANGELES,
Los Angeles County
Defendant and Respondent. )
Super. Ct. No. BC219557
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,1 § 12900 et seq.) (FEHA) provides and the internal remedy that a
city charter requires before filing an FEHA disability discrimination claim in
superior court. We conclude the employee need not exhaust both administrative
remedies, and that receiving a Department of Fair Employment and Housing (the
Department) “right to sue” letter is a sufficient prerequisite to filing an FEHA
claim in superior court.
I. FACTUAL BACKGROUND
Plaintiff Steve Schifando filed a complaint against the City of Los Angeles
(City) in Los Angeles County Superior Court, alleging employment discrimination
based on physical disability under the FEHA. The complaint alleges the
1
All further statutory references are to the Government Code unless
otherwise indicated.
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
2
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 City of Los Angeles (City Charter). The Court
of Appeal affirmed the judgment and denied leave to amend on the new issue,
holding that Schifando was required to exhaust both the FEHA and the City
Charter remedies before filing his lawsuit in superior court. We granted review.
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.) 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 demurer, 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
3
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 (Commission) (Gov. Code, §
12903), which performs adjudicatory and rulemaking functions (Gov. Code, §
12935).
Employees who believe they have suffered discrimination under FEHA
may file complaints with the Department within a one-year period. (§ 12960.)
The Department must then investigate their claims (§ 12963). It has 150 days to
issue either an accusation for hearing before the Commission (§§ 12965, subd. (a),
12969) or a “right to sue letter.” Employees who receive a “right to sue” letter
from the Department may then proceed on their statutory causes of action in
superior court. They have one year from the date the letter is issued to do so. (§
12965, subd. (b).) If the Department decides to issue an accusation with the
Commission, it prosecutes the employee’s complaint. If the Commission finds in
favor of the employer, the employee may subsequently file suit in superior court.
In this event, the Commission’s findings are not binding on the court, which
reviews the evidence de novo. (See State Personnel Bd. v. Fair Employment &
Housing Com. (1985) 39 Cal.3d 422, 433 (State Personnel Bd.); see also Kerrigan
v. Fair Employment Practice Com. (1979) 91 Cal.App.3d 43, 51.)
The Legislature intended the FEHA’s administrative system “to occupy the
field of regulation of discrimination in employment and housing encompassed by
4
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) 52
Cal.3d 65, 77-79 (Rojo).)
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 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
2
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 ProvisionsDemand for
Reinstatement; Claim for Compensation].)
5
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 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.) 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’s 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, 39 Cal.3d at p.
433.) This standard of review reflects the respect this court has traditionally
afforded public employers’ internal reviewing board decisions. (See Westlake
Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 (Westlake).) However,
we have never confronted the issue here presented, and find troubling the
possibility that exhausting City Charter procedures might deprive a victim of
discrimination of a civil right created by the Legislature.
6
C.
State Personnel Bd.
We
discuss
State Personnel Bd., supra, 39 Cal.3d 422, because the
shortcomings of the Civil Service Act (§ 18500 et seq.) discussed in that case (as
compared to the FEHA), are equally present with respect to the shortcomings of
the City Charter at issue in this case. The main issue in State Personnel Bd. was
whether the Department may exercise jurisdiction under the FEHA over state
employees who are also protected under the antidiscrimination provisions of the
Civil Service Act. (§ 19702, subd. (a).) We concluded that “the Legislature made
a choice to afford both the remedies of the [state] Civil Service Act and the FEHA
to members of the state civil service . . . .” (State Personnel Bd., supra, 39 Cal.3d
at p. 435.) In reaching this conclusion, we recognized some fundamental
differences between the rights given to a discrimination complainant under the
FEHA and under the Civil Service Act. It is important to note that the plurality
decision in State Personnel Bd. did not reach the issue whether state employees
would have to exhaust their remedies under the Civil Service Act in order to assert
an FEHA claim. The court merely held that the Department may exercise
jurisdiction over state employees. (Id. at pp. 432-434.)
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, 39
Cal.3d at p. 432.)
7
“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 courta 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.)
8
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. (Ibid.)
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
9
independent adjudicatory bodythe [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 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 . . . .”3 (State Personnel Bd., supra, 39 Cal.3d at p. 431, italics
added.) The court reasoned that “given the differences between the two statutory
schemes, the Legislature’s desire to include state employees within the purview of
the FEHA, notwithstanding their coverage by the antidiscrimination provisions of
the Civil Service Act, is understandable. The procedures, protections and
enforcement services available to discrimination claimants under the FEHA go
beyond those available under the Civil Service Act.” (State Personnel Bd., supra,
39 Cal.3d at p. 431, fn. omitted.) The court concluded that state employees should
be able to choose between pursuing their claims under the FEHA or under other
3
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.
10
statutes that cover similar ground, but do not afford similar procedures, remedies
and protections. (Ibid.)
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 forumsthe State Personnel Board or the Department. In Watson
v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1284 (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]. (Gov. Code, § 12940 et seq.; [State
Personnel Bd., supra, 39 Cal.3d at pp. 429, 431].) She chose to file her first
charge with the DFEP [Department of Fair Employment Practices] and proceed
accordingly. Watson complied with the procedures required under the act,
received her ‘right to sue’ letter and timely filed her suit.” (Watson, supra, at p.
1284.)
In
Ruiz v. Department of Corrections (2000) 77 Cal.App.4th 891, 900
(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 422, as authority only for the
Department’s and the State Personnel Board’s concurrent jurisdiction over matters
involving state employee discrimination claims. (Ruiz, supra, at p. 897.) Ruiz,
however, interpreted State Personnel Bd. and other cases as indicating a strong
public policy supporting an employee’s ability to challenge discriminatory
11
employment practices in the forum of choice. (Ruiz, supra, at p. 898.) The court
concluded that State Personnel Bd. in particular, supports “an expansive view of
the avenues aggrieved state employees may pursue when filing their complaints.”
(Ruiz, supra, at p. 897.) The court correctly noted that we “took care to explain
the differences between the two forums, emphasizing that the antidiscrimination
provisions of the FEHA were more extensive than those in the Civil Service Act.”
(Ibid.)
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 § 18500.) The purpose of the FEHA is to provide effective remedies for the
vindication of constitutionally recognized civil rights, and to eliminate
discriminatory practices . . . . The Commission and Department have 25 years of
administrative expertise solely in the prevention and remedying of civil rights
discrimination, and thus have more specialized expertise in this area than does the
[State Personnel] Board.” (State Personnel Bd., supra, 39 Cal.3d at p. 432.)
Thus, certain cases are more appropriate for the Department forum than for the
State Personnel Board. For similar reasons, we find FEHA discrimination claims
may be more appropriately heard by the Department than the City’s Board of Civil
Service Commissioners. Clearly, some plaintiffs would prefer the summary
procedure of the Civil Service Act or comparable administrative remedies, while
others with more serious discrimination claims would prefer to bypass the
administrative procedures to seek a vindication of their civil rights, even if the
12
ensuing litigation is expensive and protracted. 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, 77 Cal.App.4th at p.
891.)
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 requirements of
each agency, but there arises a potential problem with the statute of limitations.
Claimants who unsuccessfully appeal their termination with the [State Personnel]
Board must file a writ in the trial court if they wish to challenge the findings of the
Board. Otherwise, they are bound by the factual findings of the Board in future
litigation. [Citations.] In the meantime, however, these same claimants must
consider the strict statutory deadlines of the [Department] if they wish to file a
subsequent or simultaneous complaint with that agency as well. According to the
Department, claimants who receive their ‘right to sue’ letters from the
[Department] cannot initiate their lawsuits because they must [first exhaust the
administrative remedies the State Personnel Board requires], a wait that could
affect filing deadlines with the trial court. Moreover, to avoid [the effect of
collateral estoppel on issues the Board decides], these same claimants must also
wait until their writ to the trial court has been decided before initiating legal
action. [Citation.] Though the doctrine of equitable tolling could possibly remedy
the problem, the fact remains that the failure of state employees to meet statutory
deadlines would be a potential argument by employers in future litigation, adding
another obstacle for employees.” (Ruiz, supra, 77 Cal.App.4th at p. 899.)
13
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. The benefits of judicial economy,
agency expertise, and potential for swift resolution of grievances are better served
by a rule that allows aggrieved public employees to seek redress in the forum that
is most appropriate to their situation.
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
14
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, 52 Cal.3d at p. 82;
State Personnel Bd., supra, 39 Cal.3d at p. 431.) It would be inconsistent with
this legislative purpose to hold that aggrieved employees must exhaust their
remedies under a city charter contemporaneous with or before filing a claim with
the Department.4
4
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) 345 F.3d 742 (Luce, Forward). We are well aware of
Luce, Forward’s holding that employers do not violate title VII of the Civil Rights
Act of 1964 (42 U.S.C. § 2000e-3) if they, as a condition of employment, require
employees to submit all employment claims to arbitration. Although, as a
reviewing court, we will judicially notice the decisional law of the United States,
and do so here, we find Luce, Forward’s analysis and holding have no application
to the issue in the present action. (Evid. Code, § 459, subd. (a).)
The same amicus curiae asserts that principles discussed in County of
Riverside v. Superior Court (2003) 30 Cal.4th 278 render plaintiff’s construction
of the FEHA invalid on the ground that state statutes cannot constitutionally
impinge on final decisions made by charters cities that have been vested with
constitutional authority. After considering amicus curiae’s contention, we reject it
as inapposite. No party has alleged here that the Department is attempting to
“displace” the decision of the charter city at issue or, as amicus curiae also claims,
make a “completed substantive decision” about the city’s power to remove its own
employees.
15
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 chose 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. In California, jury trials may
take years to conclude, following expensive and protracted litigation. In addition,
an award of punitive damages in the employment discrimination context requires
the plaintiff to meet a significant burden of showing that the defendant was guilty
of oppression, fraud or malice. (Civ. Code, § 3294.) A plaintiff may be required
to pay the defendant’s fees if the employee continues to litigate an FEHA claim
without evidentiary support. (See Cummings v. Benco Building Services (1992)
11 Cal.App.4th 1383, 1389.) Therefore, only those employees with the most
egregious discrimination claims will likely chose litigation over the summary
charter procedures. Fewer still will be successful in seeking punitive damages.
E.
Johnson
Our decision in Johnson v. City of Loma Linda (2000) 24 Cal.4th 61
(Johnson), does not militate against this conclusion. Johnson held that when
employees have availed themselves of the administrative remedies a local statute
affords, and have received an adverse quasi-judicial finding, that finding is
binding on subsequent discrimination claims under the FEHA unless set aside
through a timely mandamus petition. (Id. at p. 76.) The Johnson plaintiff failed to
seek a timely writ of administrative mandate regarding the decision of his city
employer’s administrative decision that his termination was for economic reasons.
(Id. at p. 66.) Johnson did not require the employee to exhaust his remedies
before the city personnel board in order to assert an FEHA claimin fact, the
court made it clear that the issue was not before it. (Id. at p. 73.) Instead, the
16
court observed that the plaintiff’s reliance on Watson, supra, 212 Cal.App.3d
1271, was misplaced: “It is clear from the quoted language that the Court of
Appeal in Watson faced the issue whether a plaintiff must exhaust non-FEHA
administrative remedies as a prerequisite to initiating a lawsuit, including an
FEHA claim. That issue is not before us. As we mentioned earlier, here plaintiff
did exhaust the non-FEHA civil service administrative remedies provided by the
City.” (Johnson, supra, at p. 73.) Thus, Johnson held only that because the
employee had exhausted the remedies the city offered, and had not exhausted his
judicial remedies, the city agency’s findings were binding on his subsequent
FEHA claims. (Ibid.) We reasoned that refusing to give binding effect to those
quasi-judicial findings would “undermine the efficacy of such proceedings,
rendering them in many cases little more than rehearsals for litigation.” (Id. at p.
72.)
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 apple.” However, we do
not serve judicial economy if we require employees who have allegedly suffered
discrimination at the hands of public employers to pursue redress in two separate
forums. As noted above, to do so would frustrate legislative intent and create a
procedural labyrinth that aggrieved employees, often not represented by counsel at
the early stages of litigation, would likely be incapable of navigating.
17
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 challengedbe it
hospital, voluntary private or professional association, or public entityhas
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.)
18
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 (Moreno), we specifically
recognized the exhaustion requirement with respect to the City Charter provision
at issue in this case. We held that a “coerced resignation” fell under the “unlawful
discharge” language of former section 112 1/2 of the City Charter, and that the
plaintiff’s failure timely to utilize the internal appeal procedure barred his writ of
mandate to the superior court seeking reinstatement with the City fire department.
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.
5
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, 77
Cal.App.4th at p. 900), and misapply our decisions in Dept. of Health Services v.
Superior Court (Nov. 24, 2003, S103487) ___ Cal.4th ___, Johnson, supra, 24
Cal.4th 61, Rojo, supra, 52 Cal.3d 65, State Personnel Bd., supra, 39 Cal.3d 422,
Westlake, supra, 17 Cal.3d 465, and Moreno, supra, 20 Cal.2d 531, an untenable
position we find unsupported in law or fact. We specifically do not decide
whether an employee would be required to satisfy internal administrative remedies
when the statutes implicated by particular facts do not provide their own internal
administrative procedures.
19
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
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
MORENO, J.
6
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 a tort or contract claim based on the same
acts by the City.
7
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 Constitutions, 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.
20
DISSENTING OPINION BY BAXTER, J.
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 decision-making
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.) The majority’s holding could
effectively eviscerate the municipality’s internal remedies for redressing
employment discrimination afforded city employees under the city charter. This
1
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, italics added (State Personnel Bd.).)
I conclude the Legislature did not intend the FEHA to supplant all local
jurisdiction and decision making authority over a city employee’s employment
discrimination claims, much less abrogate the venerable rule of exhaustion of
adminsitrative 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 context, surely it knew
how to do so, and would have done so, directly and expressly. (See Rojo v. Kliger
(1990) 52 Cal.3d 65, 75 (Rojo) [if the Legislature had intended to repeal other
applicable laws, “it plainly knew how to do so”].) Accordingly, under settled
principles of statutory construction, and in the absence of clear evidence to the
contrary, we must infer that the Legislature did not intend to preempt public
municipalities from exercising their constitutionally based jurisdiction over their
employees’ labor grievance claims by exempting public employees who choose to
bypass their internal remedy and file an FEHA-based action directly in court from
2
the long-standing exhaustion requirement. As will be shown, various decisions of
this court support that conclusion. For these reasons, I respectfully dissent.
I
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 (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, 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.) 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
3
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.)
Many California public entities like the City of Los Angeles here have
established civil service systems that provide comprehensive internal remedies and
protections for resolving employment-related grievances for the vast number of
public employees across this state. Among the various amici curiae briefs we have
received in this matter is one on behalf of 61 California cities, urging that the
holding in this case will be of vital importance to public agencies throughout the
state which, in the role of employers, routinely afford their employees internal
administrative remedies for the investigation and resolution of discrimination,
wrongful termination, and similar employment-related claims. The expressed
concern is that a holding from this court—that plaintiff here was not required to
exhaust his internal adminstrative remedies provided under the Los Angeles City
Charter before filing a disability discrimination claim in superior court pursuant to
the FEHA—will greatly impact the efficiency and effectiveness of those
administrative remedies, as well as a public entity’s ability to seek to amicably
resolve employment discrimination claims without resort to costly litigation, by
authorizing employees to bypass those internal remedies and file actions directly
in court without fair notice to the employer of the nature, or possibly even the
existence of the employee’s claim, much less an opportunity to resolve it in a
conciliatory and cost-effective fashion.
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
4
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.”
In Moreno v. Cairns (1942) 20 Cal.2d 531, this court gave effect to the
exhaustion requirement embodied in former section 112 1/2 when we recognized
that the requirement—that a city employee claiming he or she has been wrongfully
and unlawfully “suspended, laid off or discharged” file a demand for reinstatement
and/or a claim for compensation within a specified time period—is a valid
precondition to maintaining a mandamus action in superior court for reinstatement
or wages due. (Moreno, at pp. 534-535.) We further held that a “coerced
resignation,” such as is alleged by plaintiff in this case, fell under the “unlawful
discharge” language of former section 112 1/2. (Moreno, at pp. 535, 536.)
5
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) 26 Cal.2d 716,
721; Moreno v. Cairns, supra, 20 Cal.2d 531) and our intermediate appellate
courts (e.g., Temple v. Horrall (1949) 92 Cal.App.2d 177, 179; Tennant v. Civil
Service Com. (1946) 77 Cal.App.2d 489, 497) specifically invoking or applying it
in this context. It is a fundamental rule of statutory construction that “[t]he
Legislature . . . is deemed to be aware of statutes and judicial decisions already in
existence, and to have enacted or amended a statute in light thereof.” (People v.
Harrison (1989) 48 Cal.3d 321, 329.)
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
6
this state who fell within the protection of comprehensive remedial internal
grievance procedures designed to resolve their employment disputes in an
amicable and expeditious fashion, to provide opportunities for conciliation and
settlement, and, short of that, to draw upon the public agency-employer’s expertise
to narrow and focus the issues relating to the claim and thereby streamline, if not
avoid altogether, litigation costly to both parties and burdensome to the courts. In
State Personnel Bd., supra, 39 Cal.3d 422, in the course of rejecting an argument
that the Legislature intended the FEHA to apply only to employees of state
agencies who were exempt from civil service protection, this court suggested “[i]t
is inconceivable that the Legislature could have silently excluded 130,000 civil
servants from its contemplation when it provided that ‘state’ employees would be
covered by the Act.” (Id. at p. 429.)
Neither the FEHA nor its predecessor statute contain any language
suggesting that, in the context of redress of public-employee grievance claims, the
Legislature intended to abrogate the longstanding 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) 191 Cal.App.3d 735, 741 [failure to
expressly apply collateral source exception to limits on reimbursement in criminal
restitution statute rendered exception inapplicable].)
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
7
State Personnel Bd., supra, 39 Cal.3d 422, does not hold otherwise—our decision
in that case stands only as authority for the proposition that the Department and
the State Personnel Board share concurrent jurisdiction over matters involving
state employee discrimination claims (id. at p. 441), not that the Department’s
FEHA-based jurisdiction preempts the jurisdiction of a state or local public agency
over its employees’ employment discrimination claims.
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 encompassed by
the provisions of this part, 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 . . . .”
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. 6.) 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.
8
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, 52 Cal.3d at p. 82; State
Personnel Bd., supra, 39 Cal.3d at p. 431.) And we have, in many past cases,
acknowledged the value and importance of an employer’s internal administrative
procedures and remedies for redressing employment-related grievances.
In Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465
(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 merits of the
plaintiff’s claim in the first instance. (See id.) Finally, even if the absence of an
internal damage remedy makes ultimate resort to the courts inevitable (see
9
Developments in the Law-Private Associations (1963) 76 Harv. L.Rev. 983,
1075), the prior administrative proceeding will still promote judicial efficiency by
unearthing the relevant evidence and by providing a record which the court may
review. Accordingly, we conclude that the exhaustion of remedies doctrine fully
applies to actions seeking damages for an allegedly wrongful termination of or
exclusion from membership in a private association. [Citation.].” (Id. at pp. 476-
477, fn. omitted.)
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 challengedbe it hospital, voluntary private or professional
association, or public entityhas 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 (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 further acknowledged the ambiguity of section
10
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. Further, ‘laws
banning discrimination . . . by any city [etc.]’ (italics added) can mean laws that
prohibit discrimination on the part of any city, etc., or, as the parties assume, laws
that are enacted by any city or other local entity.” (Rojo, supra, 52 Cal.3d at
pp. 76-77.)
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. 5, 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.
11
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
12
‘procedural minefield’ if a claim was filed with the Department at the same time
remedies were pursued under the City Charter.” (Maj. opn., ante, at p. 14.)1
The majority relies on the holdings in Watson v. Department of
Rehabilitation (1989) 212 Cal.App.3d 1271, 1284 (Watson), and Ruiz v.
Department of Corrections (2000) 77 Cal.App.4th 900 (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 [FEHA],” citing
this court’s decision in State Personnel Bd., with little more, as authority for that
conclusion. (Watson, supra, 212 Cal.App.3d at p. 1284.) The Ruiz court took a
somewhat more reserved position, reading our decision in State Personnel Bd. as
1
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. 14.) 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”? (Id. at p. 20, fn. omitted.) 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.
13
authority only for the proposition that the Department and the State Personnel
Board shared concurrent jurisdiction over matters involving state employee
discrimination claims. (Ruiz, supra, 77 Cal.App.4th at p. 897.) The Ruiz court
nevertheless reasoned that this court’s “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.” (Id. at p. 898.)
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, 77 Cal.App.4th at p. 891.)” (Maj.
opn., ante, at p. 14.) I agree that differing circumstances may prompt a public
employee desirous of pressing an employment discrimination claim to choose
which administrative or judicial remedy or remedies to pursue. He or she may
elect to pursue the internal remedies offered by the employer, or file an FEHA-
based discrimination claim with the Department by complying with the FEHA’s
separate administrative remedies, or pursue both administrative avenues of
redress, and/or bring a civil action in court. There is no legal impediment to an
employee ultimately pursuing multiple administrative remedies where available,
or both administrative and judicial remedies, either sequentially or simultaneously.
(See Rojo, supra, 52 Cal.3d at p. 88.)
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
2
“In cases appropriate for administrative resolution, the exhaustion
requirement serves the important policy interests embodied in the act of resolving
(Footnote continued on next page.)
14
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 FEHA. As we have recognized, “By expressly
disclaiming a purpose to repeal other applicable state laws (Gov. Code, § 12993,
subd. (a)), we believe the Legislature [in enacting the FEHA] has manifested an
intent to amplify, not abrogate, an employee’s common law remedies for injuries
relating to employment discrimination.” (Rojo, supra, 52 Cal.3d at p. 75, italics
added.)
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
(Footnote continued from previous page.)
disputes and eliminating unlawful employment practices by conciliation (see
Yurick v. Superior Court [(1989)] 209 Cal.App.3d [1116,] 1123), as well as the
salutory goals of easing the burden on the court system, maximizing the use of
administrative agency expertise and capability to order and monitor corrective
measures, and providing a more economical and less formal means of resolving
the dispute (see McKee v. Bell-Carter Olive Co. (1986) 186 Cal.App.3d 1230,
1244-1245). By contrast, in those cases appropriate for judicial resolution, as
where the facts support a claim for compensatory or punitive damages, the
exhaustion requirement may nevertheless lead to settlement and serve to eliminate
the unlawful practice or mitigate damages . . . .” (Rojo, supra, 52 Cal.3d at p. 83.)
3
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.
15
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 an impediment to civil suit, in
that the Department’s practice evidently is to issue a right-to-sue letter (Gov.
Code, § 12965) at the employee’s request as a matter of course (Dyna-Med, Inc. v.
Fair Employment & Housing Com. [(1987)] 43 Cal.3d [1379] at pp. 1401-1402;
see, e.g., Baker v. Children’s Hospital Medical Center (1989) 209 Cal.App.3d
1057, 1060; Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199
Cal.App.3d 1394, 1399).”4
In State Personnel Bd., supra, 39 Cal.3d 422, 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
4
In Swartzendruber v. City of San Diego (1992) 3 Cal.App.4th 896, at page
910, the Court of Appeal concluded that the FEHA process of obtaining a right-to-
sue letter from the Department was “an alternative administrative avenue to the
City’s internal review proceedings and an appeal to the [San Diego Civil Service]
Commission.” In a one-paragraph discussion, we wasted little time in
disapproving that decision. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61,
72.)
16
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
longstanding 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.
The majority’s holding exempting all FEHA plaintiffs from their obligation
to exhaust available internal administrative remedies before filing suit is also a
marked departure from the spirit if not the letter of our recent holding in Johnson,
supra, 24 Cal.4th 61. The plaintiff in Johnson was an Assistant City Manager of
the City of Loma Linda who, after being laid off, filed a grievance claim with the
city’s personnel board alleging he had been dismissed for complaining about the
sexual harrassment of a coworker. The board rejected the claim, concluding he
had been laid off for valid economic reasons. Plaintiff appealed to the city
council, which upheld the personnel board’s decision. Rather than file a
17
mandamus action in superior court to obtain review of the city council’s decision,
plaintiff filed a claim with the Department. Two years later, after obtaining a
right-to-sue letter from the Department, plaintiff filed an FEHA-based action in
superior court joined with a petition for writ of mandate (Code Civ. Proc.
§ 1094.5) challenging the actions of the local personnel board and the city council.
Plaintiff sought reinstatement, backpay, benefits, and compensatory and punitive
damages. The trial court granted summary judgment for the city on the ground of
laches, and the Court of Appeal affirmed. (Id. at pp. 65-67.)
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, 24 Cal.4th at p. 76.)
We reasoned that to permit the plaintiff to abandon the internal grievance process
without exhausting available judicial remedies would “undermine the efficacy of
such proceedings, rendering them in many cases little more than rehearsals for
litigation.” (Id. at p. 72.)
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
18
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 holding in this case, a similarly situated
employee will be free to bypass the internal administrative grievance procedure
altogether and directly file suit after requesting and receiving a right-to-sue letter
from the Department, few if any employees will have the financial incentive, or
the tenacity, to choose the route of conciliation, possible settlement, or mitigation
of damages over the shortcut straight to court.
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. The Superior Court of Sacramento County (Nov.
24, 2003 S103487) _______Cal.4th ____ (State Department of Health Services).
That case involved the provisions of the FEHA prohibiting sexual harrassment in
the workplace. The issue in State Department of Health Services was whether,
under the FEHA, an employer is strictly liable for hostile environment sexual
harassment by a supervisor, and whether the damages a plaintiff may recover from
the employer in such a case include damages that the plaintiff could have avoided
by reporting incidents of harassment to the employer. We held that an employer is
strictly liable under the FEHA for sexual harassment by a supervisor. (Id. at pp. 1-
2.) We further concluded that, “the avoidable consequences doctrine applies to
damage claims under the FEHA, and . . . under that doctrine a plaintiff’s
recoverable damages do not include those damages that the plaintiff could have
avoided with reasonable effort and without undue risk, expense, or humiliation.”
(Id. at pp. 1-2.)
We explained in State Department of Health Services that, “The avoidable
consequences doctrine is well established and broadly applied, and nothing in the
19
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, __Cal.4th at p. __
[p. 2].)
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 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., supra, 21 Cal.4th at p. 501.) It oftentimes will 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. (Rojo, supra, 52 Cal.3d at p. 86.) And where litigation proves
unavoidable, the exhaustion rule 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.)
20
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 back pay. 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.
BAXTER, J.
I CONCUR:
BROWN, J.
21
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Schifando v. City of Los Angeles
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 97 Cal.App.4th 312
Rehearing Granted
__________________________________________________________________________________
Opinion No. S106660
Date Filed: December 1, 2003
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Morris Bruce Jones
__________________________________________________________________________________
Attorneys for Appellant:
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.
Rothner, Segall & Greenstone and Glenn Rothner for California Faculty Association 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.
1
Page 2 - counsel continued - S106660
Attorneys for Respondent:
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.
2
Counsel who argued in Supreme Court (not intended for publication with opinion):
Robert M. Ball
Law Offices of Robert M. Ball
8447 Wilshire Boulevard, Suite 100
Beverly Hills, CA 90211
(323) 653-6263
David J. Duchrow
Law Office of David J. Duchrow
6701 Center Drive West, Suite 560
Los Angeles, CA 90045-1535
(310) 337-1222
Judith D. Thompson
Deputy City Attorney
200 North Main Street
800 City Hall East
Los Angeles, CA 90012-4131
(213) 978-7157
Elwood Lui
Jones Day
555 West 5th Street, Suite 4600
Los Angeles, CA 90013-1025
(213) 489-3939
3
Opinion Information
| Date: | Docket Number: |
| Mon, 12/01/2003 | S106660 |
Parties
| 1 | Schifando, Steve (Plaintiff and Appellant) Represented by Robert M. Ball Attorney at Law 8447 Wilshire Blvd, Suite 100 Beverly Hills, CA |
| 2 | City Of Los Angeles (Defendant and Respondent) Represented by Judith Denise Thompson Ofc City Attorney 200 North Main Street [800 City Hall E.] Los Angeles, CA |
| 3 | City Of Los Angeles (Defendant and Respondent) Represented by Marie Therese Mcteague Ofc LA City Attorney 200 N Main Street, Suite 1800 Los Angeles, CA |
| 4 | Grady And Associates (Pub/Depublication Requestor) Represented by Dennis M. Grady Attorney at Law 3111 Camino del Rio N #400 San Diego, CA |
| 5 | Employment Lawyers Association (Amicus curiae) Represented by David J. Duchrow 6701 Center Dr W #560 6701 Center Dr W #560 Los Angeles, CA |
| 6 | Employment Lawyers Association (Amicus curiae) Represented by Robert Edward Racine Attorney at Law 6701 Center Drive West, Ste. 560 Los Angeles, CA |
| 7 | Sixty One California Cities (Amicus curiae) Represented by Arlene Prater Best Best & Krieger 402 W Broadway 13FL San Diego, CA |
| 8 | Equal Rights Advocates, Et Al. (Amicus curiae) Represented by Charlotte Fishman 1663 Mission St #250 1663 Mission St #250 San Francisco, CA |
| 9 | Regents Of The University Of California (Amicus curiae) Represented by Paul D. Fogel Crosby, Heafey Et Al 2 Embarcadero Ctr #2000 San Francisco, CA |
| 10 | County Of Los Angeles (Amicus curiae) Represented by Elwood Lui Jones Day Reavis & Pogue 555 W 5th St #4600 Los Angeles, CA |
| Disposition | |
| Dec 1 2003 | Opinion: Reversed |
| Dockets | |
| May 9 2002 | Received untimely petition for review appellant Steve Schifando w/applctn |
| May 14 2002 | Petition for review filed with permission appellant Steve Schifando |
| May 16 2002 | Received Court of Appeal record 1 doghouse |
| May 23 2002 | Request for depublication (petition for review pending) Dennis M. Grady, Grady and Associates (non-party) |
| Jun 4 2002 | Answer to petition for review filed respondent, City of Los Angeles |
| Jun 10 2002 | Received: amended proof of service for the answer resp City of L.A. |
| Jun 14 2002 | Reply to answer to petition filed appellant Steve Schifando |
| Jul 10 2002 | Petition for Review Granted (civil case) Brown, J., was absent and did not participate. |
| Aug 6 2002 | Certification of interested entities or persons filed |
| Aug 8 2002 | Request for extension of time filed by counsel for appellant Steve Schifando requesting to September 9, 2002 to file the opening brief on the merits. *** granted *** |
| Aug 13 2002 | Extension of time granted Appellant's time to serve and file the opening brief on the merits is extended to and including September 9, 2002. |
| Sep 9 2002 | Opening brief on the merits filed appellant's |
| Sep 19 2002 | Request for extension of time filed answer brief/merits to 11-8-02 |
| Sep 25 2002 | Extension of time granted Respondent's time to serve and file the answer brief on the merits is extended to and including November 8, 2002 |
| Nov 8 2002 | Answer brief on the merits filed respondent CITY OF LOS ANGELES |
| Nov 18 2002 | Reply brief filed (case fully briefed) by counsel for appellant Steve Schifando |
| Dec 6 2002 | Request for extension of time filed by The Regents of the University of California (non-party ) requesting an extension to February 7, 2003 to file the application for permisson to file amicus curiae brief. |
| Dec 9 2002 | Extension of time granted The Regents of the University of California time to serve and file the application to file amicus curiae brief is extended to and including February 7, 2003. |
| Dec 18 2002 | Received application to file amicus curiae brief; with brief Equal Rights Advocates in support of petitioner |
| Dec 18 2002 | Received application to file amicus curiae brief; with brief California Employment Lawyers Association supports apellant Stever Schifando [both under same cover] |
| Dec 18 2002 | Received application to file amicus curiae brief; with brief Sixty-One Calif. Cities in support of respondent. (non-party) |
| Dec 30 2002 | Permission to file amicus curiae brief granted Equal Rights Advocates, et al. (non-party) |
| Dec 30 2002 | Amicus Curiae Brief filed by: Equal Rights Advocates, et al. in support of appellant. (non-party) |
| Dec 30 2002 | Permission to file amicus curiae brief granted Sixty-One Calif. Cities. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 30 2002 | Amicus Curiae Brief filed by: Sixty-One Calif.Cities in support of respondent. |
| Dec 30 2002 | Permission to file amicus curiae brief granted Calif. Employment Lawyers Assoc. in support of appellant. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 30 2002 | Amicus Curiae Brief filed by: Calif. Employment Lawyers Assoc. in support of appellant. (non-party) |
| Feb 5 2003 | Received application to file amicus curiae brief; with brief Regents of the University of Calif. (non-party) in support of respondent. |
| Feb 7 2003 | Permission to file amicus curiae brief granted the Regents of the University of California. |
| Feb 7 2003 | Amicus Curiae Brief filed by: the Regents of the University of California in support of respondent. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Feb 27 2003 | Request for extension of time filed to file appellant Steve Schifando's reply to a.c. brief of the Regents of the University of California [ asking to March 27, 2003] |
| Mar 6 2003 | Request for extension of time filed appellant's time to serve and file the reply to amicus brief is extended to and including March 27, 2003. |
| Mar 28 2003 | Response to amicus curiae brief filed from appellant Steve Schifando, response to a.c. brief of The University of California, brief accepted in L.A. with white covers instead of gray. 40K |
| Apr 23 2003 | Change of Address filed for: Atty. Robert M. Ball, counsel for appellant Steve Schifando |
| May 23 2003 | Change of Address filed for: atty Judith D. Thompson for resp City of Los Angeles |
| Jun 19 2003 | Received application to file amicus curiae brief; with brief under separate cover -- County of Los Angeles; declaration of Elwood Lui brief supports respondent City of Los Angeles. |
| Jun 26 2003 | Permission to file amicus curiae brief granted County of Los Angeles |
| Jun 26 2003 | Amicus Curiae Brief filed by: County of Los Angeles in support of Respondent. (non-party) An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Aug 5 2003 | Case ordered on calendar 9-3-03, 9am, S.F. |
| Aug 14 2003 | Filed: request of resp City of L.A. to allocate oral argument time to A/C County of L.A. (faxed) |
| Aug 20 2003 | Order filed Permission granted for two counsel to argue on behalf of resp. |
| Aug 20 2003 | Order filed permission granted for resp City of L.A. to allocate 10 min oralargument time to A/C County of L.A. |
| Aug 22 2003 | Filed: appellant's request to divide oral argument with a/c Californkia Employment Lawyers Assn. (20/10) |
| Aug 22 2003 | Filed: App's request to divide oral argument. |
| Aug 22 2003 | Telephone conversation with: applt's office re internal operating procedures do not allow time for oral argument to be divided in segements less than ten minutes. Counsel to resubmit request. |
| Aug 26 2003 | Order filed Permission granted for two counsel to present oral argument for appellant. |
| Aug 26 2003 | Order filed Permission granted for appellant to allocate 10 minutes oral argument time to a/c Calif. Employment Lawyers Association |
| Aug 27 2003 | Received letter from: amicus curiae Los Angeles County re: certain assembly no's. of legislative and executive departments of the state and this court's taking judicial notice of them. |
| Sep 3 2003 | Cause argued and submitted |
| Oct 7 2003 | Received letter from: amicus Los Angeles County |
| Dec 1 2003 | Opinion filed: Judgment reversed and remanded for further proceedings. OPINION BY: Chin, J. -- joined by: George, C.J., Kennard, Werdegar, Moreno, JJ. -- DISSENTING OPINION BY: Baxter, J. -- joined by: Brown, J. |
| Dec 16 2003 | Filed: from counsel for resp. (City of Los Angeles) Request for Clarification of Majority Opinion. |
| Dec 23 2003 | Opinion modified - no change in judgment |
| Jan 2 2004 | Remittitur issued (civil case) |
| Jan 2 2004 | Note: records returned to CA 2/3 |
| Briefs | |
| Sep 9 2002 | Opening brief on the merits filed |
| Nov 8 2002 | Answer brief on the merits filed |
| Nov 18 2002 | Reply brief filed (case fully briefed) |
| Dec 30 2002 | Amicus Curiae Brief filed by: |
| Dec 30 2002 | Amicus Curiae Brief filed by: |
| Dec 30 2002 | Amicus Curiae Brief filed by: |
| Feb 7 2003 | Amicus Curiae Brief filed by: |
| Mar 28 2003 | Response to amicus curiae brief filed |
| Jun 26 2003 | Amicus Curiae Brief filed by: |
