Bennett v. Borden, Inc.
| Decision Date | 15 January 1976 |
| Citation | 56 Cal.App.3d 706,128 Cal.Rptr. 627 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 18 Fair Empl.Prac.Cas. (BNA) 1318, 11 Empl. Prac. Dec. P 10,703 Leslie BENNETT, Plaintiff and Appellant, v. BORDEN, INC., et al., Defendants and Respondents. Civ. 15046. |
Miller, Critchfield, Eaton & Noonan by John W. Noonan, Livermore, for plaintiff and appellant.
Littler, Mendelson & Fastiff by George J. Tichy, II, San Francisco, for defendants and respondents.
Plaintiff filed this civil action for damages and injunctive relief against his former employers in August 1973, alleging that he had been relieved of his job as plant superintendent in April 1973 solely because of his age and that he had been replaced by a younger person. In October 1974 defendants' motion for summary judgment was granted, on the ground that plaintiff had failed to exhaust his administrative remedies within one year from his April 1973 discharge. Plaintiff appeals from the summary judgment.
The Fair Employment Practices Act declares that the discharge of an employee between the ages of 40 and 64 solely on the ground of age is an unlawful employment practice. (Lab.Code, § 1420.1, enacted in 1972.) The act further provides that a person claiming to be aggrieved by an unlawful employment practice may within one year file a verified complaint with the Fair Employment Practices Commission, which shall then notify the employer, conduct an investigation, and, if warranted, file a written accusation against the employer and hold a hearing. (Lab.Code, §§ 1422--1425.) If the commission finds that the employer has engaged in an unlawful labor practice, it may issue an order requiring the complainant's reinstatement with or without back pay. (Lab.Code, § 1426.)
Plaintiff's complaint and affidavit did not allege institution or completion of proceedings before the Fair Employment Practices Commission. In support of their summary judgment motion, defendants filed a declaration of B. J. Miller, an investigator for the Fair Employment Practices Commission, who stated that the agency's files disclosed no complaint of plaintiff charging employment discrimination because of age. In his declaration Mr. Miller stated that he recalled having an interview with plaintiff in the FEPC office; that he had never prohibited plaintiff or any other person from filing a claim with the agency.
If an administrative remedy is provided by statute, a litigant must ordinarily show that he has invoked and exhausted the remedy before resorting to the judicial process. (Top Hat Liquors v. Department of Alcoholic Beverage Control, 13 Cal.3d 107, 110, 118 Cal.Rptr. 10, 529 P.2d 42.) A statute investing a public agency with continuing supervisory or investigatory power affords an 'administrative remedy' when it establishes clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties. (Rosenfield v. Malcolm, 65 Cal.2d 559, 565--566, 55 Cal.Rptr. 505, 421 P.2d 697; Hollon v. Pierce, 257 Cal.App.2d 468, 475, 64 Cal.Rptr. 808.) Exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts. (Abelleira v. District Court of Appeal, 17 Cal.2d 280, 293, 109 P.2d 942.)
In this case plaintiff's lawsuit was based on allegations of employer discrimination constituting an unfair labor practice as defined by section 1420.1 of the Labor Code. The Fair Employment Practices Act supplied a well-defined administrative remedy for plaintiff's claim and plaintiff failed to pursue it, let alone exhaust it.
The doctrine of exhaustion does not apply where the administrative remedy is inadequate. (Ramos v. County of Madera, 4 Cal.3d 685, 691, 94 Cal.Rptr. 421, 484 P.2d 93.) Plaintiff argues that the administrative...
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