Snipes v. City of Bakersfield

[Civ. No. 6684. Court of Appeals of California, Fifth Appellate District. August 10, 1983.]

In this appeal we conclude that actions seeking redress for employment discrimination pursuant to the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) are not subject to the claim-presentation requirements of the Tort Claims Act (Gov. Code, § 810 et seq.). Accordingly, we reverse a judgment of dismissal entered after respondents' demurrer to the complaint was sustained without leave to amend.

The complaint further alleges: "Subsequent to the above-described denial of employment by Defendants, Plaintiff filed a complaint with the Division of Fair Employment Practices in the Department of Industrial Relations pursuant to section 1421 [1422] of the Labor Code, fn. 2 alleging that the acts described herein established a violation of the Fair Employment Practices Act.

"Subsequently, in a letter dated February 1, 1980, the Fair Employment Practices Commission notified Plaintiff of his right to file suit within one year of the date of that letter. Plaintiff has exhausted his administrative remedies as required by law."

The complaint seeks damages, including back pay; punitive damages in the amount of $1 million; an order requiring respondents to employ appellant as a police officer forthwith; and preliminary and permanent injunctions prohibiting discriminatory employment practices against appellant.

Respondents City of Bakersfield (City) and Bakersfield Police Department (Police Department) filed a general demurrer to the complaint on the ground that appellant failed to allege compliance with the requirements of the Tort Claims Act, specifically, Government Code section 945.4. The section provides in part: "[N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented ... until a written claim therefor has been presented to the public entity and has been acted upon ..., or has been deemed to have been rejected ...."

"The California Fair Employment Practices Act (FEPA) was enacted in 1959 (former Lab. Code, § 1410 et seq.; see Stats. 1959, ch. 121, § 1, p. 2000 et seq.). In 1980 it was recodified as part of the FEHA. (Stats. 1980, ch. 992, § 4, p. 3140 et seq.) The law establishes that freedom from job discrimination on specified grounds, including race, is a civil right. (§ 12921.) It declares that such discrimination is against public policy (§ 12920) and an unlawful employment practice (§ 12940).

"The statute creates a Department of Fair Employment and Housing (Department) (§ 12901), whose function is to investigate, conciliate, and seek [145 Cal.App.3d 866] redress of claimed discrimination (§ 12930). Aggrieved persons may file complaints with the Department (§ 12960), which must promptly investigate (§ 12963). If it deems a claim valid it seeks to resolve the matter--in confidence--by conference, conciliation, and persuasion. (§ 12963.7.) If that fails or seems inappropriate the Department may issue an accusation to be heard by the Fair Employment and Housing Commission (Commission). (§ 12965, subd. (a), 12969; see too § 12903.)

"The Commission determines whether an accused employer, union or employment agency has violated the act. If it finds a violation it must 'issue ... an order requiring such [violator] to cease and desist from such unlawful practice and to take such action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, restoration to membership in any respondent labor organization, as, in the judgment of the commission, will effectuate the purpose of this part ....' (§ 12970, subd. (a).)

"If no accusation is issued within 150 days after the filing of the complaint and the matter is not otherwise resolved, the Department must give complainant a right-to-sue letter. Only then may that person sue in the superior court 'under this part' (§ 12965, subd. (b))." (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211 , 213-214, fns. omitted; see also Giacomini, Advising Cal. Employers (Cont.Ed.Bar 1981) § 2.13, p. 91, § 2.90, 2.115, pp. 130, 138, hereafter cited as Giacomini.)

Government Code section 12926, subdivision (c), defines "Employer" for the purposes of the act as including "any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly; the state or any political or civil subdivision thereof and cities." (Italics added.) [3] In order to bring an action under FEHA, an individual is required to exhaust his administrative remedies under the act. (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211 , 214, 218; Hollon v. Pierce (1967) 257 Cal.App.2d 468 , 475-476 [64 Cal.Rptr. 808].) It was the intent of the Legislature to provide an administrative forum for eliminating unlawful employment practices "by conference, conciliation, and persuasion." (Gov. Code, § 12963.7, subd. (a).) "... [T]here is no right to sue, even after conciliation breaks down, unless the Department fails to file an accusation before the Commission. To that extent the availability of court remedies remains within the Department's control. [Also], the compliance structure of the FEHA encourages cooperation in the administrative process. While that process continues the Department acts on the victim's behalf and absorbs costs of pursuing his claim. Court action inevitably is speculative, and the FEHA makes civil suit the [145 Cal.App.3d 867] claimant's sole responsibility." (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at p. 218.)

The aggrieved person must file a verified complaint in writing with the department within one year from the date of the alleged unlawful practice, "except that this period may be extended for not to exceed 90 days ..., if [complainant] first obtained knowledge of the facts ... after the expiration of one year from the date of their occurrence." (Gov. Code, § 12960.) The director of the department or an authorized representative may bring a complaint on his or her own motion. (Ibid) "Director's complaints are used to address systematic problems, usually pattern and practice matters, which do not necessarily involve one aggrieved individual. Anonymous complaints and referrals from other governmental agencies may also be filed as Director's complaints. [Citation.] Complaints may also be filed on behalf of a group or class. Govt C § 12961." (Giacomini, supra, § 2.91, at pp. 130-131.)

Government Code section 12963 requires the department to investigate immediately "any complaint alleging facts sufficient to constitute a violation of any of the provisions of this part, ..." Section 12962 provides that the department must serve the employer with the complaint within 45 days of filing or "at the time of initial contact" with the employer, whichever is earlier. Service may be made personally or by certified mail with return receipt requested.