Snipes v. City of Bakersfield

• Decision Date: 10 August 1983
• Docket Number: No. 6684,6684
• Citation: 145 Cal.App.3d 861,193 Cal.Rptr. 760
• Parties: , 36 Fair Empl.Prac.Cas. (BNA) 1070 Joseph Toy SNIPES, Plaintiff and Appellant v. CITY OF BAKERSFIELD et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 760

193 Cal.Rptr. 760

145 Cal.App.3d 861, 36 Fair Empl.Prac.Cas. (BNA) 1070

Joseph Toy SNIPES, Plaintiff and Appellant v. CITY OF BAKERSFIELD et al., Defendants and Respondents.

No. 6684.

Court of Appeal, Fifth District, California.

Aug. 10, 1983.

[145 Cal.App.3d 863] Deborah A. Vollmer, Bakersfield, for plaintiff and appellant.

C.T. Swallow, Bakersfield, for defendants and respondents.

OPINION

PAULINE DAVIS HANSON, Associate Justice.

In this appeal we conclude that actions seeking redress for employment discrimination pursuant to the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.) are not subject to the claim-presentation requirements of the Tort Claims Act (Gov.Code, § 810 et seq.). Accordingly, we reverse a judgment of dismissal entered after respondents' demurrer to the complaint was sustained without leave to amend.

The complaint for damages and injunctive relief alleges that appellant, who is black, applied for employment as a police officer with the Bakersfield Police Department and was tested for the position in December 1978; that although appellant was fully qualified, possessing excellent rating reports from the Los Angeles Police Department where he previously had been employed, the Bakersfield Police Department refused to hire him

"solely because he was a member of the Black race, in violation of Section 1420 of the California Labor Code ; [ ¹ that Defendant BAKERSFIELD POLICE DEPARTMENT follows a course and policy of refusing to hire Blacks as police officers; and that by reason of said practices, Defendants have committed unlawful employment practices."

The complaint further alleges:

"Subsequent to the above-described denial of employment by Defendants, Plaintiff filed a complaint with the Division of Fair Employment Practices in the Department of Industrial Relations pursuant to section 1421 [1422] of the Labor Code, ² alleging that the acts described herein established a violation of the Fair Employment Practices Act.

"Subsequently, in a letter dated February 1, 1980, the Fair Employment Practices Commission notified Plaintiff of his right to file suit within one year of the date of that letter. Plaintiff has exhausted his administrative remedies as required by law."

The complaint seeks damages, including back pay; punitive damages in the amount of $1 million; an order requiring respondents to employ appellant as a police officer forthwith; and preliminary and permanent injunctions prohibiting discriminatory employment practices against appellant.

Respondents City of Bakersfield (City) and Bakersfield Police Department (Police Department) filed a general demurrer to the complaint on the ground that appellant failed to allege compliance with the requirements of the Tort Claims Act, specifically, Government Code section 945.4. The section provides in part:

"[N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented ... until a written claim therefor has been presented to the public entity and has been acted upon ..., or has been deemed to have been rejected ...."

Appellant argued in opposition to the demurrer that procedures of the FEHA take precedence over the general Tort Claims Law, and provide adequate notice of impending legal action. Both parties presented memoranda discussing the statutes and administrative regulations governing proceedings under the FEHA.

The court sustained the demurrer without leave to amend on the ground that "[d]efendant failed to file a written claim for damages with the moving parties as required by Government Code § 945.4." Judgment was entered on the court's order of dismissal, and this appeal followed.

DISCUSSION

Appellant, who alleged in his complaint that he pursued administrative remedies by filing a complaint with the Division of Fair Employment Practices, contends that the Legislature did not intend claims under the FEHA to be subject to the Tort Claims Act, and furthermore, that appellant's complaint is not a claim for "money or damages" so as to come within the provisions of Government Code sections 905 and 945.4. For purposes of review of the ruling sustaining the demurrer, we regard as true the allegations of the complaint. (Dale v. City of Mountain View (1976) 55 Cal.App.3d 101, 105, 127 Cal.Rptr. 520.)

I

The trial court's ruling sustaining the demurrer was based expressly upon the notice of claim requirements of Government Code sections 905 and 945.4. These provisions of the Tort Claims Act require, as a condition precedent to bringing suit against a local public entity, the timely presentation to the defendant of a written claim and the rejection of the claim in whole or in part. The limitations period for presentation of a claim of this nature appears to be one year. (See Gov.Code, § 911.2.)

Where compliance with the Tort Claims Act is required, the plaintiff must allege compliance or circumstances excusing compliance, or the complaint is subject to general demurrer. (Dujardin v. Ventura County Gen. Hosp. (1977) 69 Cal.App.3d 350, 355, 138 Cal.Rptr. 20; San Leandro Police Officers Assn. v. City of San Leandro (1976) 55 Cal.App.3d 553, 559, 127 Cal.Rptr. 856; see Van Alstyne, California Government Tort Liability Practice (Cont.Ed.Bar 1980) § 5.77, p. 569, hereafter cited as Van Alstyne.)

We agree with appellant's argument that the purposes and procedures of the FEHA demonstrate a legislative intent that actions against governmental entities brought under the FEHA are to be excepted from the general requirements of the Tort Claims Act. The FEHA constitutes a comprehensive scheme for combating employment discrimination, with specific time limitations related to the remedies provided.

"The California Fair Employment Practices Act (FEPA) was enacted in 1959 (former Lab.Code, § 1410 et seq.; see Stats.1959, ch. 121, § 1, p. 2000 et seq.). In 1980 it was recodified as part of the FEHA. (Stats.1980, ch. 992, § 4, p. 3140 et seq.) The law establishes that freedom from job discrimination on specified grounds, including race, is a civil right. (§ 12921.) It declares that such discrimination is against public policy (§ 12920) and an unlawful employment practice (§ 12940).

"The statute creates a Department of Fair Employment and Housing (Department) (§ 12901), whose function is to investigate, conciliate, and seek redress of claimed discrimination (§ 12930). Aggrieved persons may file complaints with the Department (§ 12960), which must promptly investigate (§ 12963). If it 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 Fair Employment and Housing Commission (Commission). (§§ 12965, subd. (a), 12969; see too § 12903.)

"The Commission determines whether an accused employer, union or employment agency has violated the act. If it finds a violation it must 'issue ... an order requiring such [violator] to cease and desist from such unlawful practice and to take such action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, restoration to membership in any respondent labor organization, as, in the judgment of the commission, will effectuate the purpose of this part ....' (§ 12970, subd. (a).)

"If no accusation is issued within 150 days after the filing of the complaint and the matter is not otherwise resolved, the Department must give complainant a right-to-sue letter. Only then may that person sue in the superior court 'under this part' (§ 12965, subd. (b))." (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 213-214 [185 Cal.Rptr. 270, 649 P.2d 912], fns. omitted; see also Giacomini, Advising California Employers (Cont.Ed.Bar 1981) § 2.13, p. 91, §§ 2.90, 2.115, pp. 130-138, hereafter cited as Giacomini.)

Government Code section 12926, subdivision (c), defines "Employer" for the purposes of the act as including "any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly; the state or any political or civil subdivision thereof and cities." (Emphasis added.) In order to bring an action under the FEHA, an individual is required to exhaust his administrative remedies under the act. (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d 211, 214, 218, 185 Cal.Rptr. 270, 649 P.2d 912; Hollon v. Pierce (1967) 257 Cal.App.2d 468, 475-476, 64 Cal.Rptr. 808.) It was the intent of the Legislature to provide an administrative forum for eliminating unlawful employment practices "by conference, conciliation, and persuasion." (Gov.Code, § 12963.7, subd. (a).)

"... there is no right to sue, even after conciliation breaks down, unless the Department fails to file an accusation before the Commission. To that extent the availability of court remedies remains within the Department's control. [Also], the compliance structure of the FEHA encourages cooperation in the administrative process. While that process continues the Department acts on the victim's behalf and absorbs costs of pursuing his claim. Court action inevitably is speculative, and the FEHA makes civil suit the claimant's sole responsibility." (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at p. 218, 185 Cal.Rptr. 270, 649 P.2d 912.)

The aggrieved person must file a verified complaint in writing with the department within one year from the date of the alleged unlawful practice, "except that this period may be extended for not to exceed 90 days ..., if [complainant] first obtained knowledge of the facts ... after the expiration of one year from the date of their occurrence." (Gov.Code, § 12960.) The director of the department or an authorized representative may bring a complaint on his or her own motion. (Ibid.)

"Director's complaints are used to...