Cole v. Antelope Valley Union High School Dist.

• Decision Date: 30 July 1996
• Docket Number: No. B090564,B090564
• Citation: 55 Cal.Rptr.2d 443,47 Cal.App.4th 1505
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 5691, 96 Daily Journal D.A.R. 9286 Keith L. COLE, Plaintiff and Appellant, v. ANTELOPE VALLEY UNION HIGH SCHOOL DISTRICT et al., Defendants and Respondents.

Page 443

55 Cal.Rptr.2d 443

47 Cal.App.4th 1505, 96 Cal. Daily Op. Serv. 5691,

96 Daily Journal D.A.R. 9286

Keith L. COLE, Plaintiff and Appellant, v. ANTELOPE VALLEY UNION HIGH SCHOOL DISTRICT et al., Defendants and Respondents.

No. B090564.

Court of Appeal, Second District, Division 5, California.

July 30, 1996.

Certified for Partial Publication. ^*

Gronemeier & Barker and Dale L. Gronemeier, Pasadena, for Plaintiff and Appellant.

Liebman, Reiner & Walsh, Los Angeles, and Joseph R. Zamora, Santa Monica, for Defendants and Respondents.

TURNER, Presiding Justice.

I. INTRODUCTION

This is an action under the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.) ¹ for race discrimination in employment in connection with the position of facilities manager of a high school district. The appeal is from a summary judgment in favor of the employer and several of plaintiff's supervisors. Keith L. Cole, plaintiff, a Black male, was employed under a one-year contract by the Antelope Valley Union High School District, defendant, as director of maintenance and operations. Also named as defendants were: Kenneth Brummel, the school district superintendent; E. Michael Rossi, assistant superintendent for personnel services; and Darlene Hinkel, assistant superintendent of business. At the conclusion of plaintiff's one-year tenure, his contract was not renewed. Instead, his position was eliminated. A new position was created, that of facilities manager. The facilities manager job consolidated plaintiff's duties with those of the construction manager, whose position was also eliminated. Plaintiff applied but was not hired for the position of facilities manager. The former construction manager, a White male, was chosen for the position. Plaintiff alleged both the elimination of his position and the refusal to hire him for the new job were racially motivated. The trial court granted defendants' motion for summary judgment. The court concluded: "There is insufficient evidence which demonstrates that defendants' reasons for not renewing plaintiff['s] contract or for not hiring plaintiff for the Facilities Manager position [were] pretextual and that the real reason for defendants' conduct was an intent to discriminate against plaintiff on the basis of his race...." We respectfully disagree and find a triable issue of material fact remained. Therefore, in the unpublished portion of this opinion, we reverse the summary judgment as to the school district and Mr. Rossi. However, in the published portion of this opinion, we affirm the summary judgment as to Dr. Brummel and Ms. Hinkel on the ground, as to them, plaintiff failed to exhaust his administrative remedies.

II. DISCUSSION

A. Exhaustion of Administrative Remedies ²

The individual defendants--Dr. Brummel, Mr. Rossi, and Ms. Hinkel--sought a summary judgment on the ground plaintiff failed to exhaust his administrative remedies as to them. The material facts were undisputed. Dr. Brummel and Ms. Hinkel were not named in either the caption or the body of plaintiff's initial and amended charges filed with the Department of Fair Employment and Housing (DFEH). Mr. Rossi, on the other hand, was named in the body, but not the caption, of both the initial and amended charges. The DFEH interviewed plaintiff. It found there was not a "sufficient basis to accept a formal complaint for investigation." The DFEH accepted plaintiff's discrimination charge "for 'filing purposes' only." Plaintiff did not prepare the original or amended DFEH complaints; he believed they were prepared by DFEH personnel. The caption of the DFEH complaint form stated: "NAMED IS THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY, APPRENTICESHIP COMMITTEE, STATE OR LOCAL GOVERNMENT AGENCY WHO DISCRIMINATED AGAINST ME ... ANTELOPE VALLEY UNION HIGH SCHOOL DISTRICT." Consistent with the caption of the charge, only the district was named in the DFEH's right-to-sue letter.

The failure to name individual defendants in charges filed with the DFEH has been discussed in three Court of Appeal cases. In Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1060-1061, 282 Cal.Rptr. 726, Division Seven of this appellate district held, as a matter of first impression in California, that individuals who were not named in either the caption or the body of the DFEH charge could not be held accountable in a civil lawsuit. The court reasoned: "[I]t is ... consonant with the [FEHA] to require the exhaustion of administrative remedies (by charging all those who are sought to be accountable) to enable a speedy resolution of violations of the [FEHA] without the delays attendant to a lengthy civil trial. For a claimant to withhold naming of known or reasonably obtainable defendants at the administrative complaint level is neither fair under the [FEHA] in its purpose of advancing speedy resolutions of claims nor fair to known, but unnamed individuals, who at a later date are called upon to 'personally' account in a civil lawsuit without having been afforded a right to participate at the administrative level." (Id. at p. 1061, 282 Cal.Rptr. 726.)

The question was next considered in Martin v. Fisher (1992) 11 Cal.App.4th 118, 119-123, 13 Cal.Rptr.2d 922. In Martin, an individual defendant was named in the body of the plaintiff's DFEH charge, but not in the caption of the document, nor in the right-to-sue letter. There was evidence the defendant had learned of the charges through his employer and had participated in the administrative investigation. (Id. at pp. 120, 122, 13 Cal.Rptr.2d 922.) He had not been served with copies of the administrative charge or the right-to-sue letter. (Id. at p. 120, 13 Cal.Rptr.2d 922.) Division Two of this appellate district held that as a supervisory employee, the defendant's interests were essentially those of the employer. (Id. at p. 122, 13 Cal.Rptr.2d 922.) The court also held it was error to dismiss the claims against the individual defendant for failure to exhaust administrative remedies because he was named in the body of the administrative charge. Further, our colleagues in Division Two of this appellate district noted the individual had participated in the administrative investigation. (Id. at p. 123, 13 Cal.Rptr.2d 922.) The court stated: "The function of an administrative complaint is to provide the basis for an investigation into an employee's claim of discrimination against an employer, and not to limit access to the courts. A strict rule [that only a party named in the caption of the administrative complaint may be sued, regardless of any other circumstances] would harm victims of discrimination without providing legitimate protection to individuals who are made aware of the charges through the administrative proceeding. If [individual defendants] are described in the charge as the perpetrators of the harm, they can certainly anticipate they will be named as parties in any ensuing lawsuit." (Id. at p. 122, 13 Cal.Rptr.2d 922.)

The Court of Appeal for the Fourth Appellate District, in an opinion authored by our colleague, Associate Justice Sheila Sonenshine, followed Martin in Saavedra v. Orange County Consolidated Transportation etc. Agency (1992) 11 Cal.App.4th 824, 826-828, 14 Cal.Rptr.2d 282. The court held an individual not delineated as the offending party, but described in the body of the administrative charge as the perpetrator of the discrimination, was properly the subject of a civil lawsuit. The court found the defendant was put on notice of the charges and had an opportunity to participate in the administrative process. Associate Justice Sonenshine based her conclusion on another reason as well. She noted the DFEH form was ambiguous in that it requested the name of the employer which discriminated against the plaintiff, but did not request the names of individuals who discriminated. The DFEH charge form stated, in relevant part: " 'NAMED IS THE EMPLOYER, LABOR ORGANIZATION, EMPLOYMENT AGENCY[,] APPRENTICESHIP COMMITTEE, STATE OR LOCAL GOVERNMENT AGENCY WHO DISCRIMINATED AGAINST ME.' " (Id. at p. 828, 14 Cal.Rptr.2d 282.) Associate Justice Sonenshine reasoned the plaintiff could not be barred from suing the individual defendant when the DFEH charge did not ask her to name him. (Id. at p. 827-828, 14 Cal.Rptr.2d 282.) Consistent with Valdez, Martin, and Saavedra, we conclude plaintiff's lawsuit is viable as against Mr. Rossi because he was named in the body of the administrative charge as a person who discriminated against plaintiff. If there had been an administrative investigation, Mr. Rossi would have been put on notice of the charges, and would have had an opportunity to participate.

We turn to the question whether plaintiff can proceed against Dr. Brummel and Ms. Hinkel, who were not mentioned in the administrative charge at all. We conclude plaintiff is barred from suing those individual defendants for failure to name them in the DFEH charge. We rely on the language of section 12960. That statute provides, in relevant part: "Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint in writing which shall state the name and address of the person, employer, labor organization or employment agency alleged to have committed the unlawful practice complained of...." (Italics added.) The legislative directive is clear and unambiguous. As a result, there is no need for construction. (People v. Jones (1993) 5 Cal.4th 1142, 1146, 22 Cal.Rptr.2d 753, 857 P.2d 1163; Rojo v. Kliger (1990) 52 Cal.3d 65, 73, 276 Cal.Rptr. 130, 801 P.2d 373; Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.) Moreover, as used in the Government Code, " '[s]hall' is mandatory and 'may' is permissive" (Gov.Code, § 14), "[u]nless the provision or context otherwise requires...." (Gov.Code, § 5). There is nothing in section 12960 which requires or even permits us to construe the word "s...