Martin v. Lockheed Missiles & Space Co.

• Decision Date: 11 October 1994
• Docket Number: No. H011590,H011590
• Citation: 35 Cal.Rptr.2d 181,29 Cal.App.4th 1718
• Parties: , 68 Fair Empl.Prac.Cas. (BNA) 1225 Noreen MARTIN, Plaintiff and Appellant, v. LOCKHEED MISSILES & SPACE COMPANY, INC., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 181

35 Cal.Rptr.2d 181

29 Cal.App.4th 1718, 68 Fair Empl.Prac.Cas. (BNA) 1225

Noreen MARTIN, Plaintiff and Appellant, v. LOCKHEED MISSILES & SPACE COMPANY, INC., Defendant and Respondent.

No. H011590.

Court of Appeal, Sixth District, California.

Oct. 11, 1994.

William N. Woodson, III, Thomas E. Kotoske, Palo Alto, for appellant.

Angela M. Nolan, John C. Cook, Daniel P. Westman, Christopher R. Mosley and Sheppard, Mullin, Richter & Hampton, San Francisco, for respondent.

BAMATTRE-MANOUKIAN, Associate Justice.

Noreen Martin, a long-term employee of Lockheed Missiles & Space Company, Inc., was laid off at age 65. She sued Lockheed, alleging sex and age discrimination under the California Fair Employment and Housing Act (Gov.Code, § 12900 et seq.) and the cognate provision of the California Constitution (Cal. Const., art. I, § 8). Lockheed's motion for summary judgment was granted; Martin appeals from the ensuing judgment. We shall conclude that Lockheed sufficiently established a legitimate business purpose for its personnel decision which ultimately led to termination of Martin's employment, and that Martin's theories of recovery other than age discrimination were vitiated by her failure to exhaust administrative remedies under California law. Accordingly we shall affirm the judgment.

Strictly speaking Martin's action, as pled, was for age discrimination, sex discrimination, sexual harassment, and retaliation for failure to grant sexual favors, all alleged to have occurred over a considerable period of time prior to, and ultimately culminating in, termination of her employment. It is uncontradicted, however, that Martin never complained of any of these things until after she was laid off, that both parties have proceeded upon the assumption that the wrong for which Martin seeks compensation is the termination of her employment, and thus that this is, in essence, an action for wrongful termination.

Martin was employed by Lockheed, in Santa Clara County, from 1966 to 1979. She then left Lockheed, in good standing, to move with her husband to another part of the state. In 1984, when she was 58 years old, Lockheed rehired her, with seniority from 1966, and she worked for Lockheed until, in 1991, Lockheed made her "available for reassignment" from her position. In Lockheed's vernacular "available for reassignment" meant that Martin would be removed from her position, that she was free to seek another position at Lockheed to which to be "reassigned," but that if she could not find such a position her employment at Lockheed would end. Martin was unable to find another position at Lockheed and was laid off.

Exhaustion of Administrative Remedies

Under California law "an employee must exhaust the ... administrative remedy" provided by the Fair Employment and Housing Act, by filing an administrative complaint with the California Department of Fair Employment and Housing (DFEH) (Gov.Code, § 12960; cf. id., §§ 12901, 12925, subd. (b)) and obtaining the DFEH's notice of right to sue (id., § 12965, subd. (b)), "before bringing suit on a cause of action under the act or seeking the relief provided therein...." (Rojo v. Kliger (1990) 52 Cal.3d 65, 88, 276 Cal.Rptr. 130, 801 P.2d 373 [dictum]; cf. Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 213-214, 185 Cal.Rptr. 270, 649 P.2d 912; Denney v. Universal City Studios, Inc. (1992) 10 Cal.App.4th 1226, 1232, 13 Cal.Rptr.2d 170; Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1121, 257 Cal.Rptr. 665; Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 890, 220 Cal.Rptr. 684.) To exhaust his or her administrative remedies as to a particular act made unlawful by the Fair Employment and Housing Act, the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts. (Yurick v. Superior Court, supra, 209 Cal.App.3d at pp. 1121-1123, 257 Cal.Rptr. 665.) We have recognized, in the context of the Fair Employment and Housing Act, that "[t]he failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect," and thus that failure to exhaust administrative remedies is a ground for a defense summary judgment. (Miller v. United Airlines, Inc., supra, 174 Cal.App.3d at p. 890, 220 Cal.Rptr. 684.)

In April 1991 Martin filed an administrative charge of age discrimination against Lockheed with the federal Equal Employment Opportunity Commission (EEOC). It appears that the EEOC then referred the charge to the DFEH, which (also in April 1991) notified Martin that the EEOC "will be responsible for the processing of this complaint," that "[t]hat agency should be contacted directly for any discussion of resolution of the charge," and that the DFEH would close its case "on the basis of 'processing waived to another agency.' " In the same document the DFEH gave Martin notice of the right to file a private lawsuit in a California court.

In February 1992 Martin undertook to amend her administrative charge to add theories of sexual discrimination, harassment and retaliation. She filed her amended charge with the federal EEOC on February 26, 1992; in her briefing she appears to acknowledge that she did not separately file the amended charge with the California DFEH. On February 28, 1992, the EEOC issued a notice of right to sue to Martin. It is neither shown nor asserted that DFEH took any further action in this matter after April 1991.

Martin filed this California superior court action in April 1992. She affirmatively alleged that she sought to "state claims under the State of California's antidiscrimination statutes contained in California Government Code Sections 12940, 12941 [both substantive provisions of the Fair Employment and Housing Act], and Article I, Section 8 of the California Constitution."

Upon these essentially undisputed facts Lockheed took the position, in partial support of its motion for summary judgment that Martin had failed to exhaust her California administrative remedies, and therefore could not maintain her action under the California anti-discrimination statutes, as to any theory of recovery other than the age-discrimination claim embodied in her initial claim and for which the DFEH had issued a right-to-sue notice. The trial court agreed, granting summary judgment on that ground "as to any claims for sexual harassment, retaliation, or sex discrimination that may be found in the complaint."

On appeal, Martin asserts that the trial court's conclusion was erroneous. She argues (1) that state courts have concurrent jurisdiction over discrimination claims based on EEOC right-to-sue notices, (2) that because the DFEH "refused to take any action" on the February 26, 1992, amended charge Martin could bring a state court action even without a right-to-sue notice, (3) that to require that Martin have obtained a new right-to-sue notice from the DFEH in addition to the EEOC's right-to-sue notice would be to create an inappropriate "additional procedural technicality," and (4) that because the DFEH had informed Martin that the EEOC would be handling the case, and had referred inquiries concerning the case to the EEOC, Martin had done everything that was required of her when she filed her amended charge with the EEOC.

Martin does not assert that her theories of recovery, other than age discrimination, might embody viable claims under the common law not subject to the requirement of exhaustion of remedies. (Cf. Rojo v. Kliger, supra, 52 Cal.3d at p. 88, 276 Cal.Rptr. 130, 801 P.2d 373.)

1. Concurrent Jurisdiction

Martin asserts that Title VII of the federal Civil Rights Act of 1964 as amended gives state courts concurrent jurisdiction over civil actions for employment discrimination based on notices of right to sue issued by the federal EEOC. From this premise Martin argues that the EEOC's February 1992 right-to-sue notice was sufficient evidence, for purposes of this action based on the California Fair Employment and Housing Act, that Martin had exhausted her administrative remedies.

It is by no means clear that California courts have concurrent jurisdiction even over Title VII actions. (Cf., e.g., Ibarbia v. Regents of University of California (1987) 191 Cal.App.3d 1318, 1321, fn. 1, 237 Cal.Rptr. 92; Safeway Stores, Inc. v. Superior Court (1987) 190 Cal.App.3d 713, 720, fn. 7, 235 Cal.Rptr. 636; cf. generally 2 Larson, Employment Discrimination (1994) § 49.15(b), pp. 9B-68--9B-71; id. (Jul.1994 Cum.Supp.) at pp. 172-174.) In any event we agree with Lockheed that on its face, and under the federal statute it implements (42 U.S.C. § 2000e-5(f)(1)), an EEOC right-to-sue notice satisfies the requirement of exhaustion of administrative remedies only for purposes of an action based on Title VII. Inasmuch as Martin elected to base her action not on Title VII but on the Fair Employment and Housing Act the EEOC right-to-sue notice technically did not satisfy the jurisdictional requirement that Martin have exhausted her administrative remedies as to the asserted violations of the California statute. (Cf. Yurick v. Superior Court, supra, 209 Cal.App.3d at pp. 1121-1123, 257 Cal.Rptr. 665.)

2. DFEH Inaction

The Fair Employment and Housing Act provides that "[i]f an accusation is not issued [by the DFEH] within 150 days after the filing of a complaint, or if the department earlier determines that no accusation will issue, the [DFEH] shall promptly notify, in writing, the person claiming to be aggrieved. Such notice shall indicate that the person ... may bring a civil action under this part...." (Gov.Code, § 12965, subd. (b); cf. Ewing v. Gill Industries, Inc. (1992) 3 Cal.App.4th 601, 616, 4 Cal.Rptr.2d 640.) Because it is undisputed that the DFEH took no action at all on Martin's February 1992 amended charge, Martin argues, she was entitled to bring this action without a right-to-sue notice from the DFEH.

The short answer is that, on the face...