Rodriguez v. Airborne Express

Decision Date12 September 2001
Docket NumberDEFENDANT-APPELLEE,No. 99-17350,PLAINTIFF-APPELLANT,99-17350
Parties(9th Cir. 2001) ROBERT RODRIGUEZ,, v. AIRBORNE EXPRESS,
CourtU.S. Court of Appeals — Ninth Circuit

Jeremy L. Friedman, Oakland, California, for the plaintiff-appellant.

Theodora R. Lee, Therese M. Leone, Littler Mendelson, Oakland, California, for the defendant-appellee.

Appeal from the United States District Court for the Northern District of California Charles A. Legge, District Judge, Presiding. D.C. No. CV-99-00057-CAL

Before: Harry Pregerson, William C. Canby, Jr., and David R. Thompson, Circuit Judges.

Canby, Circuit Judge

Opinion by Judge Canby

Plaintiff Robert Rodriguez brought this action against Defendant Airborne Express ("Airborne") for discrimination based on disability in violation of California's Fair Employment and Housing Act ("FEHA"). After removing the case to federal court on the ground of diversity of citizenship, Airborne moved for summary judgment. The district court granted the motion, dismissing Rodriguez's action for failure to exhaust administrative remedies under FEHA. We have jurisdiction under 28 U.S.C. §§ 1291, and we reverse the summary judgment and remand for further proceedings to determine whether equitable considerations excuse Rodriguez's failure to exhaust his administrative remedies.

BACKGROUND

Rodriguez was employed as a delivery truck driver by Airborne for seven years, until he was terminated in 1995, allegedly for absenteeism. Rodriguez contends that his attendance problems were caused by his severe mental depression that resulted from the death of his infant son and other family difficulties. He contends that, although his supervisors at Airborne were well aware that his absences were caused by his depression and the side-effects of his anti-depressant medications, they failed to engage in any discussions of accommodation prior to his termination.

After three absences in September 1995, Airborne informed Rodriguez that he would be discharged for excessive absenteeism. Rodriguez appealed the discharge through his union, asking at his grievance hearing that consideration be given to his mental depression and family situation. He lost this appeal, and was terminated on December 11, 1995.

Nearly one year later, on December 5, 1996, Rodriguez went to the California Department of Fair Employment and Housing ("DFEH") to file a charge of discrimination against Airborne under FEHA.1 The parties dispute whether, as a result of this visit, Rodriguez succeeded in charging discrimination on the ground of disability and, if he did not succeed, whether the actions of the DFEH caseworker who interviewed him excused his failure.

At the DFEH, Rodriguez completed a pre-complaint questionnaire, in which he listed Airborne as the party he wished to complain against, but left blank all questions pertaining to the discrimination he allegedly suffered. He was interviewed that same day by DFEH consultant Victor Aguirre. According to Rodriguez's declaration in the district court, he told Aguirre about his mental depression during the intake interview, explaining that it was the cause of his absences. He told Aguirre that his depression was due to the death of his child and separation from his wife, that he was taking anti-depressant medications, and that his absences were excused by his physicians. He told Aguirre that he was discharged because of three particular absences, and gave the reasons for those absences. He then asked Aguirre to pursue a charge of disability discrimination against Airborne. According to Rodriguez, Aguirre told him repeatedly during the interview that, "under the law," he must claim that he was discriminated against because of race, age, national origin or religion, and then steered the interview toward a possible claim of race discrimination. In response to Aguirre's questions, Rodriguez agreed that he may have been terminated because he is Hispanic. Finally, when asked whether there was any other possible reason for his termination, Rodriguez suggested he may have been discharged for his pro-union stance or to avoid future worker's compensation payments.

The record contains Aguirre's handwritten notes from the intake interview, which were judicially noticed by the district court along with the rest of Rodriguez's DFEH file. 2 The parties dispute whether these notes corroborate or undermine Rodriguez's account of the intake interview. Aguirre's two and one-half pages of notes, dated December 5, 1996, under the heading "Intake Notes," read substantially as follows. Page one begins with Rodriguez's name, date of birth, job title, hire date, and salary. It continues with a notation that Rodriguez had three accidents and three absences within a six-month period. The notes next indicate that Rodriguez went to grievance through his union. The following two lines read, specifically: "1993 -lost a child" and "1995 -lost wife (separated)." The next line reads either"DOI -1994" or "DUI -1994." Page one ends with a notation that Rodriguez was terminated by a grievance panel on December 11, 1995 for absenteeism. Page two begins with a list of possibly Hispanic Airborne employees who had been discharged by the company. Next, there is a racial breakdown of the forty-eight delivery drivers at the Airborne office where Rodriguez worked. Page two ends with notations of Rodriguez's thoughts on possible reasons for his termination; these reasons include his pro-union activities and his boss's dislike of him. Page three begins with a reference to a "back condition" that Airborne knew of when Rodriguez was hired. This notation is followed by a heading for "White guys written up for absenteeism," but no names are listed underneath this heading. The notes conclude with the name of Rodriguez's supervisor.

Following the intake interview, Aguirre drafted Rodriguez's formal administrative complaint,3 which charged Airborne with discrimination because of race. Rodriguez signed the complaint on December 6, 1996. In addition to a checkmark in the box labeled "race," the complaint contained the following factual allegations:

I. On or about December 11, 1995, I was terminated from my position as an Express Driver. I was hired as an Express Driver in September 1989. At the time of my termination, I was making roughly $57,000.00 per year.

II. I was told that I was terminated because of my absenteeism and involvement in accidents.

III. I believe that I was terminated because of my race (Mexican-American). My belief is based on the following:

A. Non-Mexican-Americans who have more absences and accidents than I have were not terminated.

B. I believe that the reasons given for my termination were simply pretextual, the truth being that, I was terminated because of my race (Mexican-American).

Aguirre then investigated Rodriguez's charge of race discrimination against Airborne, but found no probable cause to prove a violation. Accordingly, DFEH closed Rodriguez's case and issued him a right-to-sue letter on November 24, 1997. Rodriguez did not receive his right-to-sue letter until May 1998, because it was initially sent to the wrong address. According to Rodriguez, he began searching for an attorney soon thereafter, and ultimately secured an attorney in late October or early November 1998. On November 13, 1998, ten days before filing this action, Rodriguez's attorney sent a letter to DFEH District Administrator, Herbert Yarbrough, seeking to amend Rodriguez's original administrative complaint to include a charge of mental disability discrimination. In this letter, Rodriguez's attorney stated that Rodriguez had disclosed his medical condition to Aguirre, who failed to include disability as a basis for discrimination when he drafted Rodriguez's formal administrative complaint.

Thus, Rodriguez wished to amend his complaint to "make clear" that his charge included disability discrimination and to ensure a complete administrative record prior to filing his civil complaint in superior court. On November 20, 1998, nearly three years after Rodriguez was terminated by Airborne, DFEH amended Rodriguez's original complaint, as requested, to include a charge of mental disability discrimination. DFEH then sent a copy of the amended complaint to Airborne, along with a "Notice of Filing of Amended Closed Discrimination Complaint," which stated that the investigation would not be reopened.

Rodriguez filed this action against Airborne in California Superior Court on November 23, 1998, alleging only disability discrimination under FEHA. After removing the case to federal court on diversity grounds, Airborne moved for partial summary judgment on the ground of failure timely to exhaust administrative remedies. The district court granted Airborne's motion, concluding that Rodriguez had not exhausted his administrative remedies under FEHA, because his charge of mental disability discrimination was not filed with DFEH within FEHA's one-year deadline, and that equitable doctrines did not apply to save his claim. Accordingly, the district court dismissed Rodriguez's action. From this ruling, Rodriguez appeals.

DISCUSSION
I. Exhaustion of Administrative Remedies

We review de novo the district court's ruling that Rodriguez's mental disability discrimination claim is barred for failure timely to exhaust his administrative remedies as required by FEHA. Cf. Vinieratos v. United States Dept. of Air Force Through Aldridge, 939 F.2d 762, 768 & n.5 (9th Cir. 1991) (reviewing de novo whether plaintiff exhausted his administrative remedies, a statutory precondition to suit under Title VII).4

"In order to bring a civil action under FEHA, the aggrieved person must exhaust the administrative remedies provided by law." Yurick v. Superior Court , 209 Cal. App. 3d 1116, 1121 (1989); accord Romano v....

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