Rojo v. Kliger

Citation252 Cal.Rptr. 605,205 Cal.App.3d 646
Decision Date27 October 1988
Docket NumberNo. B031801,B031801
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 205 Cal.App.3d 646 205 Cal.App.3d 646 Emma ROJO and Teresa Maloney, Plaintiffs and Appellants, v. Irwin H. KLIGER, and Irwin H. Kliger, M.D., a Medical Corporation, et al., Defendants and Respondents. Civ.

Patten, Faith & Sandford and Lorraine Grindstaff, Monrovia, for plaintiffs and appellants.

Knapp, Petersen & Clarke, Andre E. Jardini and Alan C. Arnall, Universal City, for defendants and respondents.

KLEIN, Presiding Justice.

Plaintiffs and appellants Emma Rojo (Rojo) and Teresa Maloney (Maloney) (collectively Because pursuing the administrative remedy afforded by the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.) 2 is not a condition precedent to seeking redress in a civil action for gender-based employment discrimination, the judgment is reversed.

appellants) appeal a grant of summary judgment in favor of defendants and respondents Irwin H. Kliger, an individual, and Irwin H. Kliger, M.D., a medical corporation (collectively Kliger) on their sexual harassment claims. 1

FACTUAL & PROCEDURAL BACKGROUND

On August 29, 1986, appellants filed a "Complaint for Violation of Civil Rights and Intentional Infliction of Emotional Distress" in the superior court.

The complaint alleged: Rojo and Maloney, adult females, were employed by Kliger; during the term of their employment, they were subjected by Kliger to sexually harassing remarks and demands for sexual favors; Kliger implied their acquiescence would ensure their continued employment; Kliger's conduct violated their rights under section 12940, of the FEHA, and was intentional and malicious and in disregard of the fact that Rojo and Maloney would suffer humiliation and emotional distress.

Kliger answered, denied the allegations, and asserted various affirmative defenses, including assumption of the risk and comparative negligence. Kliger then moved for summary judgment on the ground Rojo and Maloney had failed to pursue or exhaust their exclusive remedy under the FEHA.

In opposition papers, Rojo and Maloney argued that pursuit of the administrative remedy is not a condition precedent to maintaining an action based upon sexual employment discrimination. They also maintained the FEHA did not preempt existing state law, but only local governmental law.

Additionally, appellants' papers cited their deposition testimony as to Kliger's offensive remarks and uninvited intimate touching. Finally, the papers indicated appellants would request leave to amend their complaint to seek damages for assault and battery and wrongful discharge, among other causes of action.

On October 8, 1987, Rojo and Maloney filed a motion for leave to file a proposed first amended complaint. The summary judgment motion was heard the same day.

The trial court was unpersuaded by appellants' opposition papers, and ruled no authority permitted a sex discrimination claim to be filed directly in the superior court, and that their first recourse was to FEHA administrative proceedings. After a brief hearing, it granted summary judgment for Kliger. 3

CONTENTIONS

Appellants contend the FEHA does not preempt the field of regulation of gender-based employment discrimination, and that pursuing and exhausting the statute's administrative remedy is not a condition Kliger urges, and the trial court found, appellants' allegations fall within the scope of the FEHA, and the doctrine of exhaustion of administrative remedies bars appellants' suit.

precedent to their maintaining a civil action against Kliger.

DISCUSSION
1. Statutory scheme.

The California Fair Employment Practice Act (FEPA) was passed in 1959 (former Lab.Code, § 1410 et seq.) and recodified in 1980 as part of the FEHA.

" 'The law establishes that freedom from job discrimination on specified grounds, ... [including sex] is a civil right. ( § 12921.) It declares that such discrimination is against public policy ( § 12920) and an unlawful employment practice ( § 12940). (fn. omitted.)' [Citation.] The statute creates two administrative bodies: the Department of Fair Employment and Housing (the department) ( § 12901), whose function is to investigate, conciliate, and seek redress of claimed discrimination ( § 12930), and the [Fair Employment and Housing Commission], which [commission] performs adjudicatory and rulemaking functions ( § 12935, see also § 12903). An aggrieved person may file a complaint with the department ( § 12960), which must promptly investigate ( § 12963). If the department deems a claim valid it seeks to resolve the matter--in confidence--by conference, conciliation, and persuasion. ( § 12963.7.) If that fails or seems inappropriate, the department may issue an accusation to be heard by the commission. ( §§ 12965, subd. (a), 12969.) The department acts as prosecutor on the accusation and argues the complainant's case before the commission. [Citations.]" (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1383-1384, 241 Cal.Rptr. 67, 743 P.2d 1323.)

If no accusation is issued within 150 days after the filing of a complaint, or if the department earlier determines not to prosecute the case, and the matter is not otherwise resolved, the department must give the complainant a "right-to-sue" letter. Only then may that person bring a civil suit in the superior court. ( § 12965, subd. (b)). (Dyna-Med, Inc. v. Fair Employment & Housing Com., supra, at p. 1384, 241 Cal.Rptr. 67, 743 P.2d 1323; Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 213-214, 185 Cal.Rptr. 270, 649 P.2d 912.)

The broad goal of the FEHA is set forth at section 12920, which states: "It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age."

2. Examination of relevant statutes discloses limited scope of FEHA.
(a) Principles of statutory interpretation.

The applicable rules of statutory interpretation are found in Brown v. Superior Court (1984) 37 Cal.3d 477, 208 Cal.Rptr. 724, 691 P.2d 272, wherein our Supreme Court was required to construe another portion of the FEHA.

" 'The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citations.] Moreover, "every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect." [Citation.]' [Citation.] A construction rendering statutory language surplusage ' "is to be avoided." ' [Citations.] [p] To determine the Legislature's intent, the court looks first to the words of the statute. [Citation.] However, the legislative purpose will not be 'sacrificed to a literal construction of any part of the act.' [Citation.] The language of a statute ' " 'should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.' " [Citations.]' [Citation.]" (Id., pp. 484-485, 208 Cal.Rptr. 724, 691 P.2d 272.)

Mindful of the above principles, the applicable code sections are construed.

(b) Relevant statutes within the statutory scheme.

FEHA section 12993, added in 1980, deals with the continuation of other laws relating to discrimination. Subdivision (c) thereof declares the Legislature's intent to preempt local laws in the field. It states: "While it is the intention of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of this part, 4 exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political subdivision of the state, nothing contained in this part shall be construed, in any manner or way, to limit or restrict the application of Section 51 of the Civil Code." (Italics added.) 5

A narrow reading which failed to address the italicized portion of section 12993, subdivision (c), set out above, would overlook the Legislature's stated intention to occupy the field only to the exclusion of local laws.

An example of a narrow reading which led to a misinterpretation of the FEHA is found in Ficalora v. Lockheed Corp. (1987) 193 Cal.App.3d 489, 491, 238 Cal.Rptr. 360. There, the trial court granted summary judgment for an employer in an action by an employee claiming she was discharged in retaliation for having challenged the employer's sex discrimination practices. The Ficalora court affirmed, holding that "[e]ven if a common law cause of action existed before retaliation was identified in the [FEHA] as an unlawful employment practice, the Legislature has made clear its intent to 'occupy the field of regulation of discrimination in employment' by virtue of the FEHA. ( § 12993, subd. (c).)" (Id., at p. 492, 238 Cal.Rptr. 360, italics added.) The Ficalora court thus gave no recognition to the limiting language set forth in said subdivision.

Likewise, in Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464, 1472, 249 Cal.Rptr. 578, where the plaintiff alleged employment discrimination based on ancestry, race, sex and age, the court stated: "The Act is an attempt by the Legislature to 'occupy the field ' of regulation of discrimination in employment and housing (Gov.Code, § 12993, subd. (c)) [,]" without taking any cognizance of the modifying language. (Id., at p. 1478, 249 Cal.Rptr. 578, italics added.)

Section 12993, subdivision (c), is also the basis of a similar statement in Robinson v. Hewlett-Packard Corp. (1986) 183 Cal.App.3d 1108, 1124, 228 Cal.Rptr. 591. That case dealt with...

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