Schifando v. City of Los Angeles

[No. B142999. Second Dist., Div. Three. Mar. 29, 2002.]

STEVE SCHIFANDO, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.

(Superior Court of Los Angeles County, No. BC219557, Morris B. Jones, Judge.)

Plaintiff Steve Schifando appeals the dismissal of his complaint against defendant City of Los Angeles after the court sustained without leave to amend the city's demurrer to his complaint. The complaint alleges a single count for employment discrimination based on physical disability under FEHA. Schifando contends (1) the complaint adequately alleges exhaustion of the administrative remedy provided by FEHA; (2) any pleading defect can be corrected, so the court abused its discretion by sustaining the demurrer without leave to amend; and (3) he need not exhaust the administrative remedy provided by the city charter. We affirm the judgment based on his failure to exhaust the administrative remedy provided by the city charter.

An employee alleging a FEHA cause of action must exhaust the administrative remedy provided by FEHA before filing a complaint in court. ( Romano v . Rockwell Internat., Inc. (1996) 14 Cal.4th 479 , 492; Rojo v . Kliger , supra , 52 Cal.3d at p. 83.) This entails filing a complaint with the DFEH and obtaining a right-to-sue letter from the department. (Gov. Code, §§ 12960, 12965, subd. (b); Romano , at p. 492; Rojo , at p. 83.)

An employee alleging a cause of action for wrongful discharge against a public entity that provides an internal grievance procedure for wrongful discharge claims must exhaust the administrative remedy provided by the public entity before filing a complaint in court. Several cases involving former Los Angeles City Charter section 1121/2 (section 1121/2), the provision here at issue, have so held. ( Moreno v. Cairns , supra , "20 Cal.2d at p. 535; City of Los Angeles v. Superior Court ( Heckl ), supra , "246 Cal.App.2d at pp. 75-76; Temple v . Horrall (1949) 92 Cal.App.2d 177 , 179; Tennant v . Civil Service Com. (1946) 77 Cal.App.2d 489 , 497; see Steen v . Board of Civil Service Commrs. (1945) 26 Cal.2d 716 , 721.)