Denney v. Universal City Studios, Inc.

• Decision Date: 04 November 1992
• Docket Number: No. B,B
• Citation: 13 Cal.Rptr.2d 170,10 Cal.App.4th 1226
• Court: California Court of Appeals Court of Appeals
• Parties: , 2 A.D. Cases 1485 Al B. DENNEY, Plaintiff and Appellant, v. UNIVERSAL CITY STUDIOS, INC., Defendant and Respondent. 064211.

Page 170

13 Cal.Rptr.2d 170

10 Cal.App.4th 1226, 2 A.D. Cases 1485

Al B. DENNEY, Plaintiff and Appellant, v. UNIVERSAL CITY STUDIOS, INC., Defendant and Respondent.

No. B 064211.

Court of Appeal, Second District, Division 2, California.

Nov. 4, 1992.

[10 Cal.App.4th 1229] Sylvia T. Whitmore, Encino, for plaintiff and appellant.

Joseph Posner, Inc., Encino, as amicus curiae on behalf of plaintiff and appellant.

Garfield, Tepper, Ashworth & Epstein, and Garfield, Tepper & Epstein, Leora I. Goren and Jonathan M. Turner, Los Angeles, for defendant and respondent.

FUKUTO, Associate Justice.

Plaintiff, Al B. Denney (Denney), appeals from summary judgment in favor of defendant, Universal City Studios, Inc. (Universal), in an action for age discrimination in employment, handicap discrimination, and retaliation. The trial court granted summary judgment although Universal had moved only for summary adjudication of the latter two causes of action, and had acknowledged that the age discrimination claim should be tried. The summary judgment therefore was unauthorized and must be reversed.

However, the procedural posture of the case also permits review, as the parties request, of the implicit adverse summary adjudication of Denney's handicap discrimination and retaliation causes of action. With respect to these, we hold that the former is precluded by the exclusive remedy provisions of the Workers' Compensation Act, but that the latter withstands all challenges Universal advances and may proceed.

FACTS

The depositions, declarations, and exhibits before the trial court disclosed the following. Denney, age 54 in 1989, worked as a motion picture set lighting technician beginning in 1960. As of 1979, he worked principally for Universal, being called in on a daily or weekly basis. In 1979, he suffered on-the-job ankle and knee injuries, both requiring surgery, for which he received workers' compensation from Universal. Denney worked infrequently until declared medically able in 1983.

When he resumed working for Universal in 1984, Denney was generally assigned to fixtures, a limited and relatively unstrenuous aspect of set lighting. Whether Denney requested this limitation is in dispute. However, commencing in 1986, he sought full "show" assignments, and Universal apparently did not provide him them. Denney's work for Universal and resulting income declined from over $39,000 in 1985 to less than $2,000 in 1988.

According to Denney, beginning in 1986 Rick Maas, assistant to Universal's set lighting director, repeatedly told Denney he was too old and crippled to work, and that Universal needed younger, healthier men.

In 1987, Denney several times requested that James Murphy be assigned to assist him. Murphy was an experienced technician, and Denney was dissatisfied with the "permits"--generally younger workers, not yet eligible for union membership--Universal was providing him. At that time, Murphy had a union grievance pending against Universal, based on his not being used in favor of the younger permits. After several requests for Murphy, Denney was told he would not be brought in until his outstanding grievance was resolved.

When Denney told Murphy of this, Murphy filed a second grievance. In August 1987 Denney testified on Murphy's behalf, allegedly complaining that the use of permits effected displacement of older technicians. When Denney finished testifying, Maas told him, by Denney's account, "That's it. You're through at Universal."

Denney was called to work at Universal for only 10 days in 1988, and for 5 in 1989. He was "laid off"--i.e., not recalled for the next day of an ongoing job--several times during the first week of May 1989, being restored only upon demand of the set decorator. After May 8, 1989, Denney was never recalled by Universal.

On May 24, 1989, Denney, in propria persona, visited the United States Equal Employment Opportunity Commission (EEOC) to complain of his treatment. He filled out an EEOC intake questionnaire, in which he charged he had been "gradually phased out" because of age, retaliation, and physical handicap. On May 30, an EEOC employee presented Denney with a prepared charge of discrimination, to be filed with both the EEOC and the California Department of Fair Employment and Housing (DFEH). The charge alleged only age discrimination. Denney objected to the omission of retaliation and handicap discrimination, but the representative replied that that was how a claim was commenced. Denney executed the charge, and it was filed with both agencies.

Two days later, the DFEH notified Denney that the EEOC would be processing the complaint, and the DFEH was closing the case on that basis. Accordingly, the DFEH notified Denney, he had one year to bring suit under the Fair Employment and Housing Act, Government Code section 12900 et seq. (FEHA). (See Gov.Code, § 12965, subd. (b).)

The results of the EEOC investigation do not appear in the record. However, in May 1990 Denney hired counsel, at the suggestion of an EEOC investigator. At counsel's suggestion, Denney revisited the EEOC, which on May 30 and June 4, 1990 issued further and amended charges, which included Denney's claim of retaliation.

Simultaneously, on May 23, 1990, Denney filed a charge alleging retaliation and handicap discrimination, as well as age discrimination, directly with the DFEH. The DFEH immediately closed that charge "on the basis of no jurisdiction," because it had been presented more than one year after Denney's last employment with Universal. (See Gov.Code, § 12960.) The notice of closure again included notice of the right to sue, under Government Code section 12965, subdivision (b).

Denney commenced this action on May 29, 1990. His operative, second amended complaint alleged causes of action for age discrimination, retaliation, and physical handicap discrimination, all in violation of the FEHA (Gov.Code, §§ 12940, subds. (a), (f), 12941, subd. (a)).

Shortly before the date set for trial, Universal moved for summary adjudication (Code Civ.Proc., § 437c, subd. (f)) of several issues assertedly foreclosing the retaliation and handicap discrimination causes of action. The motion did not address the age discrimination claim, and at the hearing Universal's counsel told the court, "[W]e are not arguing the age discrimination case. We have no doubt that should go to trial." However, the court three days later issued a minute order that "The motion for summary judgment is GRANTED as prayed [sic]; [p] counsel for defendant to prepare the judgment; [p] the trial date ... is advanced and vacated and set aside...." Judgment for Universal followed.

DISCUSSION

1. The Summary Judgment.

The summary judgment, spontaneously granted without Universal's so moving or in any way challenging Denney's age discrimination cause of action, exceeded the court's jurisdiction, and must be reversed. (See Foremost Ins. Co. v. Wilks (1988) 206 Cal.App.3d 251, 260, fn. 8, 253 Cal.Rptr. 596.)

Both parties request that we yet consider Universal's contentions for summary adjudication of Denney's retaliation and handicap causes of action. Although summary adjudication short of summary judgment is generally nonappealable (see Code Civ.Proc., §§ 437c, subds. (j), (l), 904.1), issues that were separately tendered for summary adjudication may be reviewed on appeal from a summary judgment. (White Motor Corp. v. Teresinski (1989) 214 Cal.App.3d 754, 764, fn. 17, 263 Cal.Rptr. 26.) We therefore proceed to consider the issues Universal presented below and seeks to sustain here. ¹

2. Exhaustion of Administrative Remedies.

In Government Code section 12960, the FEHA provides (with an exception not here applicable) that a complaint of FEHA violation may be filed with the DFEH not more than one year after the unlawful practice occurred. Filing of the complaint, in turn, leads to the "right to sue" notice authorizing a lawsuit (Gov.Code, § 12965, subd. (b)). Hence, such filing is an administrative process that must be "exhausted" as a precondition to suit. (See, e.g., Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1121, 257 Cal.Rptr. 665.)

Universal's first contention below was that Denney failed to satisfy this requirement with respect to his retaliation and handicap discrimination claims, because his complaint, filed with the DFEH through the EEOC a few weeks after Universal ceased employing him, charged only age discrimination. Denney's amended and further charges, alleging retaliation and handicap discrimination, were not filed until a few weeks after a year following his discharge.

Denney advances numerous theories in opposition to this claim. Many of them lack merit; but there also exist clear grounds why Universal's exhaustion claim cannot be summarily sustained. These reasons appear from two decisions of the United States Court of Appeals for the Ninth Circuit, concerning exhaustion of federal, EEOC remedies: Albano v. Schering-Plough Corp. (9th Cir.1990) 912 F.2d 384 (Albano ), and Casavantes v. California State University, Sacramento (9th Cir.1984) 732 F.2d 1441 (Casavantes ). ²

In Albano, the trial court dismissed the employee's claim of age discrimination resulting in constructive discharge, because his EEOC charge had alleged only age discrimination in promotion. On appeal, the employee conceded, and the Ninth Circuit agreed, that the latter charge could not be construed or treated as encompassing the former. Nevertheless, the court reversed the dismissal, because the failure to include the discharge claim in the administrative charge had been the fault of the EEOC, not the plaintiff. The evidence showed that after filing the original, promotion charge, the plaintiff had reported his constructive discharge to the EEOC, and requested it amend the charge to include that violation; but the EEOC had refused to do so, assuring plaintiff "that his original charge for failure to promote encompassed this claim." (Albano, supra,...