Terris v. County of Santa Barbara, 021618 CAAPP2, B268849

Docket Nº:2d Civ. B268849
Opinion Judge:GILBERT, P. J.
Party Name:SHAWN TERRIS, Plaintiff and Appellant, v. COUNTY OF SANTA BARBARA, Defendant and Respondent.
Attorney:James H. Cordes for Plaintiff and Appellant. Nye, Peabody, Stirling, Hale & Miller, LLP, Jonathan D. Miller, Holly C. Blackwell for Defendant and Respondent.
Judge Panel:We concur: YEGAN, J., PERREN, J.
Case Date:February 16, 2018
Court:California Court of Appeals
 
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SHAWN TERRIS, Plaintiff and Appellant,

v.

COUNTY OF SANTA BARBARA, Defendant and Respondent.

2d Civ. No. B268849

California Court of Appeals, Second District, Sixth Division

February 16, 2018

         CERTIFIED FOR PARTIAL PUBLICATION[*]

         Donna D. Geck, Judge Superior Court County No. 1339241 of Santa Barbara

          James H. Cordes for Plaintiff and Appellant.

          Nye, Peabody, Stirling, Hale & Miller, LLP, Jonathan D. Miller, Holly C. Blackwell for Defendant and Respondent.

          OPINION FOLLOWING REHEARING

          GILBERT, P. J.

         Campbell v. Regents of University of California (2005) 35 Cal.4th 311 holds that public employees must pursue appropriate internal administrative remedies before filing a civil action against their employer. Labor Code section 244 does not require a litigant to exhaust administrative remedies before bringing a civil action.1 Here we hold section 244 applies only to claims before the Labor Commissioner. It has no effect on the Campbell rule.

         Plaintiff Shawn Terris appeals a summary judgment in favor of her former employer, defendant County of Santa Barbara (County), in her wrongful termination action. We conclude, among other things, that: 1) Terris did not exhaust her administrative remedies on her claims that the County terminated her job to discriminate against her in violation of sections 1101, 1102, and 1102.5; [[2) there are no triable issues of fact on Terris's claim that she was terminated because of her sexual orientation (Gov. Code, § 12940, subd. (a), Fair Employment and Housing Act (FEHA));]] but 3) the trial court erred by awarding the County costs on the FEHA cause of action. We affirm in part and reverse in part.

         FACTS

         Terris was a County employee in the position of a “Program Business Leader” analyst. She was subject to civil services rules. The County projected a “budget shortfall for the fiscal year 2009-2010” of nearly $11 million. Terris was one of 35 employees laid off.

         After receiving a layoff notice in July 2009, Terris exercised her right to remain employed by displacing or “bump[ing]” a person in another position the “First 5 Program/Business Leader.” Patricia Wheatley, the director of First 5 Santa Barbara, decided that position required special skills. She requested a “special skills designation” to expand the requirements for that position. Theresa Duer, the County assistant human resources director, granted that request and determined Terris was not qualified for that position. Terris was laid off.

         Terris filed a complaint with the County's Civil Service Commission (Commission). She alleged her termination procedure violated her seniority rights. She argued the County and County Executive Officer (CEO) Michael F. Brown engaged in “discrimination against her for exercising her rights as a County employee, as an elected Santa Barbara County Employees Retirement Board Trustee, and for filing a Claim Against Public Entity....”

         On August 20, 2009, the Commission ruled that 1) it could decide whether the County followed the proper procedures for terminating Terris's employment, but 2) it could not decide Terris's discrimination claims because she had not exhausted her administrative remedy of filing a discrimination complaint with the Equal Employment Opportunity Office (EEO). Terris did not file an EEO complaint. She urged the Commission to decide only whether the County followed the proper procedures in terminating her employment.

         One month later, the Commission ruled the special skills designation was appropriate, the layoff was authorized, and the County complied with all required procedures. It found, “[A]ll proper notices were given and seniority was followed.”

         Terris filed a wrongful termination and employment discrimination action. In her third amended complaint, she alleged the County: 1) terminated her employment to prevent her from holding an elected office as a retirement board trustee (§ 1101) (second cause of action), 2) interfered with her political activity as a retirement board trustee (§ 1102) (third cause of action), and 3) retaliated against her for lawful complaints she had made (§ 1102.5) (fourth cause of action). [[In her fifth cause of action, she alleged sexual orientation discrimination. She said the County “regarded her as [a] lesbian, ” which was the “motivating factor” in its decision to terminate her. (Gov. Code, § 12940, subd. (a) (FEHA).)]]

         The trial court granted the County's motion for summary judgment. It found: 1) Terris did not exhaust her administrative remedies on her second, third and fourth causes of action; and 2) there was no triable issue of fact on her FEHA cause of action.

         DISCUSSION

         Exhausting Administrative Remedies

         Terris contends the trial court erred in ruling that she failed to exhaust her administrative remedies before filing her wrongful termination action alleging violation of sections 1101, 1102, and 1102.5. We disagree.

         “[T]he party moving for summary judgment” must “make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[I]f he carries his burden, ” the opposing party must make “a prima facie showing of [a triable issue].” (Ibid.) We review summary judgments de novo. (Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180 Cal.App.4th 430, 436.) “‘We are not bound by the trial court's stated reasons or rationales.'” (Ibid.)

         “‘[W]here an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.'” (Campbell v. Regents of University of California,

supra, 35 Cal.4th 311, 321.) Administrative remedies include “internal grievance procedures” provided by a public entity. (Ibid.) County employees must exhaust internal administrative remedies that are provided in county civil service rules. (Los Angeles County Employees Assn. v. County of Los Angeles (1976) 61 Cal.App.3d 926, 934.) Terris was a County employee “subject to the” County's “Civil Service Rules.”

         Terris claims the County's discriminatory employment action included: 1) terminating her employment to interfere “with her holding an elected office as a Retirement Board Trustee” (§ 1101); 2) attempting to coerce “and influence” her “political activity as a Retirement Board Trustee” (§ 1102); and 3) retaliating against her because of her “complaints about violations of her activity directed to labor organizing County workers” (§ 1102.5).

         The County claims Terris had an administrative remedy to resolve these claims, which she did not pursue. We agree. Terris was required to file an EEO complaint, and if she disagreed with the EEO report, she could file “an appeal directly to the [Commission].” The EEO investigates employment discrimination based on violations of sections 1101, 1102, and 1102.5. The civil service rules provided her with “the right to challenge the alleged discrimination... before the Commission....” Terris could have subpoenaed witnesses to testify at an evidentiary hearing. She could have sought judicial review of the Commission's decisions on her discrimination claims through administrative mandamus. The Commission had the authority to reinstate her and order back pay and attorney fees if it so decided.

         Terris acknowledged she “did not file an EEO complaint prior to pursuing claims for violation of [sections] 1101, 1102, and 1102.5.” (Campbell v. Regents of University of California, supra, 35 Cal.4th at pp. 329-333 [public employee who claimed retaliatory job termination in violation of the Labor Code had to exhaust the employer's internal administrative remedies]; Palmer v. Regents of University of California (2003) 107 Cal.App.4th 899, 904 [“When a... public entity establishes an internal grievance mechanism, ... failure to exhaust those internal remedies precludes any subsequent private civil action”].)

         The ...

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