Page v. Los Angeles County Probation Dept.

[No. B171843. Second Dist., Div. Four. Nov. 3, 2004.]

MARSANELL PAGE, Plaintiff and Appellant, v. LOS ANGELES COUNTY PROBATION DEPARTMENT, Defendant and Respondent.

(Superior Court of Los Angeles County, No. BC291304, Haley J. Fromholz, Judge.)

In this employment discrimination case, plaintiff Marsanell Page (Page) appeals from the order of dismissal entered after the trial court sustained the demurrer of defendant Los Angeles County Probation Department (Department) to Page's complaint without leave to amend. Page alleges that the Department discriminated against her and failed to accommodate her disability in violation of the California Fair Employment and Housing Act. (Gov. Code, § 12900 et seq., hereafter FEHA.) fn. 1 We conclude that since Page failed to exhaust administrative and judicial remedies, she cannot pursue this action for damages. We therefore affirm.


II

Page Failed to Exhaust Administrative and Judicial Remedies Before Filing This Action for Damages

[2] In Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074 [6 Cal. Rptr. 3d 457, 79 P.3d 569] ( Schifando ), the Supreme Court held that government employees who believe they have suffered employment discrimination may choose to pursue remedies provided by either the Fair Employment and Housing Act (FEHA) or internal grievance procedures such as a city, county or state civil service commission. Public employees who choose [123 Cal.App.4th 1142] to file a complaint before the DFEH are not required to exhaust the remedies provided by a civil service commission. The Schifando court reasoned that some plaintiffs prefer the summary procedures of the civil service commission while others would prefer to bypass the administrative process and file a lawsuit to vindicate civil rights, and that giving the choice of forum to plaintiffs best serves the legislative purposes of FEHA. ( Id. at p. 1087.)

[3] The Schifando court made plain that, having chosen a forum for discrimination claims, a public employee must exhaust "the chosen administrative forum's procedural requirements." ( Schifando, supra , 31 Cal.4th at p. 1088.) Moreover, if a public employee has requested a non-FEHA administrative remedy such as a civil service commission hearing and obtained an adverse decision, the employee must exhaust judicial remedies by filing a petition for writ of mandate in the trial court, or else the administrative decision will be binding on subsequent FEHA claims. ( Id. at p. 1090.) "[E]mployees challenging administrative findings [must] do so in the appropriate forum, by filing a writ of administrative mandamus petition in superior court. [This] ensures that employees who choose to utilize internal procedures are not given a second 'bite of the procedural apple.' " ( Id. at pp. 1090-1091.)

[4] Page chose the civil service commission process and proceeded through three days of hearing over the course of four months, resulting in a comprehensive decision by the hearing officer. Page was not then free to ignore and abandon the administrative process and proceed to a FEHA action for damages. Page had to await a final Commission decision and, if it was adverse, then file a petition for writ of mandate in the trial court to overturn the Commission decision. Only if she had done so and prevailed in the writ proceedings, thus vacating the Commission decision, could she have then filed a lawsuit, since the Commission's decision has issue and claim preclusive effect. Meanwhile, the statute of limitations may have expired on her FEHA claims since there are strict deadlines for filing a complaint with the DFEH and for filing a lawsuit once the Department issues a right to sue letter. The Schifando court concluded that, to avoid such a "procedural minefield," and to achieve the "benefits of judicial economy, agency expertise, and potential for swift resolution of grievances," public employees may choose what forum is most appropriate to their situation. ( Schifando, supra , 34 Cal.4th at pp. 1088-1089.)