Okoli v. Lockheed Technical Operations Co., H011422

CourtCalifornia Court of Appeals
Citation43 Cal.Rptr.2d 57,36 Cal.App.4th 1607
Decision Date21 July 1995
Docket NumberNo. H011422,H011422
Parties, 68 Fair Empl.Prac.Cas. (BNA) 904, 95 Cal. Daily Op. Serv. 5792, 95 Daily Journal D.A.R. 9766 Charles OKOLI, Plaintiff and Respondent, v. LOCKHEED TECHNICAL OPERATIONS CO., Defendant and Appellant.

[36 Cal.App.4th 1608] John C. Cook, Daniel P. Westman, Felicia R. Reid, Paul H. Adams, Sheppard, Mullin, Richter & Hampton, San Francisco, Angela M. Nolan, San Jose, for appellant.

[36 Cal.App.4th 1609] William N. Woodson, III, Thomas E. Kotoske, Palo Alto, for respondent.

COTTLE, Presiding Justice.

Charles Okoli filed a charge of discrimination against his employer, Lockheed Technical Operations Company (Lockheed), with the California Department of Fair Employment and Housing (DFEH). The charge alleged that Okoli's supervisor had denied him a promotion based on Okoli's race and national origin and had made derogatory comments to him. While DFEH was investigating the charge, Lockheed allegedly subjected Okoli to numerous adverse employment actions in retaliation for filing the DFEH charge. However, Okoli did not amend his DFEH charge to include these acts of retaliation; nor did he file a new charge based on retaliation. Later, after Okoli received his "right to sue" letter from DFEH, he brought the instant action against Lockheed, alleging racial and national origin discrimination, racial harassment, and retaliation. The jury rendered a defense verdict on the discrimination and harassment causes of action but found in Okoli's favor on the retaliation cause of action. On appeal, Lockheed argues 1 that Okoli's retaliation claim is barred by the exhaustion of remedies doctrine. We agree and, accordingly, reverse the judgment.


We relate here only the facts that are pertinent to the exhaustion of remedies issue.

Okoli filed his charge of discrimination with DFEH on May 18, 1988. In the charge he indicated the "discrimination [was] based on race" and the "most recent or continuing discrimination took place 2/10/88." When asked for "the particulars," he recounted: "I. I have been employed by Lockheed Missiles and Space Co., Technical Operations since 7-13-84. My current salary is $583.00 per week. [p] On 2-10-88, I was denied promotion to the position of Alternate Lead Planner Analyst by Daniel Pentacost, Real Time Supervisor. During the course of my employment I was harassed, the incident occurring on 9-8-87. [p] II. Mr. Pentacost's reasons for not promoting me were that I had a language problem and that my evaluation was poor. [p] III. I believe that I have been denied promotion and harassed because of my Race, Black and because of my national origin, on the basis that: [p] 1. [36 Cal.App.4th 1610] I was second in seniority and Real Time experience. I have all the qualifications for the position. [p] 2. Another employee of my same race who was highest in seniority and Real Time experience was also denied this position. [p] 3. A White employee who had less seniority and Real Time experience than myself was promoted to this position. [p] 4. No minorities of the Black race have had any

management positions in this department. [p] 5. On at least two different occasions, the supervisor made derogatory comments about my national origin. Upon returning from an emergency trip from Africa, and on another occasion, Mr. Pentacost implied by his comments that I was running drugs."

DFEH investigated the claim over the next several months and in December 1988 closed its file and notified Okoli of his right to pursue civil litigation.

On June 20, 1989, Okoli filed suit against Lockheed. His complaint alleged, inter alia, causes of action for racial discrimination, racial harassment, and retaliation under the Fair Employment and Housing Act (FEHA) ( Gov.Code, § 12900 et seq.). 2 Lockheed demurred, pointing to Okoli's failure "to plead sufficient facts to demonstrate that [he has] met the necessary prerequisites to suit under the FEHA." Lockheed asserted that Okoli had "not allege[d] which, if any of defendants' personnel actions [Okoli had] made the subject of a DFEH complaint...."

After Okoli filed his first amended complaint, Lockheed filed a general denial and also asserted several separate affirmative defenses. Relative to this appeal is the fifth affirmative defense, which reads: "Plaintiffs' complaint cannot be maintained to the extent that it relies on alleged claims of discrimination which were not made the subject of a timely charge filed with the California Department of Fair Employment and Housing, or to the extent that plaintiffs have otherwise failed to fulfill the statutory prerequisites to suit set forth in the California Fair Employment and Housing Act. Gov't.Code § 12900 et seq."

Subsequently, Lockheed filed a motion for summary judgment, in which it argued: "On the exhaustion issue, it is undisputed that Okoli never filed a charge with the Department of Fair Employment and Housing alleging unlawful retaliation. Ex. B to Cowan Decl. Okoli's failure to exhaust his administrative remedies deprives this Court of jurisdiction over Okoli's cause of action for retaliation. Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1121-22 [257 Cal.Rptr. 665]; Rojo v. Kliger (1990) 52 Cal.3d 65 [276 Cal.Rptr. 130, 801 P.2d 373]."

[36 Cal.App.4th 1611] Once again Lockheed raised the exhaustion issue in its trial brief, pointing out that "exhaustion of administrative remedies and timely filing of a suit are prerequisites to bringing a civil action." (Capitalization omitted.) Citing Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123, 257 Cal.Rptr. 665, Lockheed argued that to permit civil actions to be based upon theories or events not subject to a charge with the DFEH " 'would undermine vital policy interests embodied in the FEHA, i.e., the resolution of disputes and elimination of unlawful employment practices by conciliation.' " (Emphasis added by Lockheed.)

At the start of trial, Lockheed repeatedly stressed in motions in limine that it believed Okoli's cause of action for retaliation was barred by the exhaustion of administrative remedies doctrine. When asked which of its affirmative defenses it intended to pursue at trial, counsel responded: "The three that we wish to--two conditionally hold to, and one hold to for obvious reasons. [p] The first one is administrative remedies, failure to exhaust administrative remedies. Obviously, that's a key to in limine motions we're going to be arguing today. We would retain that one."

Later, counsel argued that under California Supreme Court precedents, Okoli was required to file a charge with the DFEH if he wanted to bring that same claim before the courts. Counsel stated: "That is, under Rojo, the scope of the charge and the obligation to file a charge with the EEOC or the DFEH. There is a charge here that talks about discrimination, discriminatory treatment, discrimination, i.e., this one job. [p] There is no charge here, there is nothing here that talks about ... retaliation.... [p] ... And your honor, the scope of the court's jurisdiction, under Rojo and under cases cited in Rojo, and I would direct your attention to cases cited on page 83, Yurick v. Superior Court, Robinson, Miller and Myers, go to this point, that the scope of the charge and the scope of the civil suit that follows it, is limited to what the DFEH reasonably could

have or would have investigated, based on the charge that was presented to them. [p] You can see this, you can make a decision as to whether, based on this charge, the DFEH would have reasonably investigated ... claims of retaliation. [p] [Y]urick is right on point for this, your honor, as well as another case, name of which is Ficalora v. Lockheed, which was reversed on other grounds.... [p] ... Rojo reverses Ficalora on the point that there is no common law remedy, here it is, 193 Cal.App.3d 489, [238 Cal.Rptr. 360] Ficalora v. Lockheed Corporation, 1987. That was reversed on the point that the DFEH is the exclusive remedy for discrimination. But in that case, and it is still good law, for the fact that if one files a charge and it is later retaliated against, their obligation is to file a new charge. They can't sue for retaliation [36 Cal.App.4th 1612] if they have not filed a charge of retaliation. [p] Both Yurick and Ficalora are absolute, all fours statements of the law that you can't sue for retaliation unless you have filed a charge of retaliation. You will note on this charge, not only when you look at the charge itself, not only does it not say anything about retaliation, and I am not going to make a big deal about the fact that there is a box to check and they did not check the box, I am making a big point of that, only to say--"

Finally, in its motion for nonsuit, held out of the presence of the jury, Lockheed argued: "Submit that under the Yurick case and under Rojo v. Clayker [Kliger] [sic ] the California Supreme Court case, that these other alleged acts of discrimination are not properly before this court.... As to the retaliation claim, the plaintiff again in his DFEH charge did not identify any specific act with regard to his terms and conditions of employment, that caused him monetary damage. There has been no testimony in this case regarding any act of retaliation that carried any tangible loss with it. [p] Even if there had been some testimony, the plaintiff simply has failed to charge--excuse me, failed to file any charge of discrimination with DFEH with respect to that. There hasn't been any such testimony. [p] Even if there were, under the Yurick case, retaliation is a separate theory under the DFEH as to which charge has to be filed. Plaintiff did not do so."

The motion in limine was apparently never ruled upon, and the motion for nonsuit was denied. Subsequently the jury came in with a verdict for Okoli on only his retaliation claim. Lockheed filed...

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