Yurick v. Superior Court, C005989

Citation209 Cal.App.3d 1116,257 Cal.Rptr. 665
Decision Date21 April 1989
Docket NumberNo. C005989,C005989
CourtCalifornia Court of Appeals
Parties, 54 Fair Empl.Prac.Cas. (BNA) 1196, 6 IER Cases 1717 Donald YURICK, Petitioner, v. SUPERIOR COURT of Butte County, Respondent, Mary ANTONETTI, Real Party in Interest.

Johnson, Hoffman & Pagliero, Dianna Z. Hoffman and Astrid Qirko, Sacramento, for petitioner.

No appearance for respondent.

Korber & Kennedy and Jeff Korber, for real party in interest.

PUGLIA, Presiding Justice.

Petitioner, Donald Yurick, seeks a writ of mandate directing respondent superior court to vacate its denial of his motion for summary judgment and to grant the motion.

This proceeding arises out of an action commenced in respondent court by Mary Antonetti (plaintiff). Her complaint names five defendants, including Oroville Hospital (hospital) and petitioner Donald Yurick (Yurick).

The complaint contains counts alleging gender discrimination, unlawful retaliation, intentional infliction of emotional distress, wrongful discharge and age harassment. Yurick is charged only with age harassment and intentional infliction of emotional distress. In his summary judgment motion, Yurick contended, as he does here, that plaintiff failed to exhaust administrative remedies as to the cause of action for age harassment and as to the cause of action for emotional distress, his conduct was not outrageous as a matter of law. We shall order a writ to issue as prayed.

The complaint was filed October 20, 1986. It alleges plaintiff was employed in the purchasing department of hospital as assistant to the department manager. Plaintiff was denied regular pay raises and on the manager's resignation in March 1986, was passed over in favor of a male for head of the department. On May 23, 1985, plaintiff had filed a charge with the Department of Fair Employment and Housing alleging unlawful gender discrimination in employment. The hospital and two of its employees engaged in a campaign of harassment and discrimination in retaliation for her filing of the administrative charge. As a result of those and other unlawful acts, plaintiff was terminated from employment in June 1986. In March 1986, some ten months after plaintiff filed her administrative charge, Yurick became plaintiff's supervisor.

The complaint charges Yurick with age harassment in that between March and June 1986 Yurick, plaintiff's immediate supervisor, knew plaintiff was more than 40 years old and repeatedly told her at the work place in the presence of others that anyone over 40 was senile, and that plaintiff was senile and a liar.

In the cause of action for intentional infliction of emotional distress, the complaint alleges the aforementioned acts of Yurick were done with the intent to drive plaintiff from her employment by causing "... mental stress and suffering, and were further done with reckless disregard of [her] rights to be free of such conduct at her place of employment and to work in a gender-neutral, non-hostile environment."

Code of Civil Procedure section 437c, subdivision (a) authorizes a motion for summary judgment if it is contended the action has no merit. "The motion for summary judgment shall be granted if all the [moving] papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ.Proc., § 437c, subd. (c).) Conversely, summary judgment may not be granted if the papers submitted show a triable issue of material fact. (Gigax v. Ralston Purina Co. (1982) 136 Cal.App.3d 591, 596, 186 Cal.Rptr. 395.) Summary judgment may not be defeated merely because there are disputed factual issues; if the defendant's showing negates an essential element of the plaintiff's case, then no amount of factual conflict on other aspects of the case will preclude summary judgment. 1 (Clarke v. Hoek (1985) 174 Cal.App.3d 208, 214, 219 Cal.Rptr. 845.)

I.

The California Fair Employment and Housing Act (FEHA) is found at Government Code section 12900 et seq. (Further statutory references to sections of an undesignated code are to the Government Code.) It provides that freedom from employment discrimination on account of sex and age is a civil right. ( § 12921.) It declares such discrimination is against public policy ( § 12920) and an unlawful employment practice. ( §§ 12940, 12941.)

FEHA creates a Department of Fair Employment and Housing (Department) ( § 12901) whose function is to receive, investigate and conciliate complaints of unlawful employment discrimination. ( §§ 12930, 12963 et seq.) A person claiming to be aggrieved by an alleged unlawful practice may file a written charge with the Department within one year from the date of the alleged unlawful practice, which must "state the name and address of the person, employer, labor organization or employment agency alleged to have committed the unlawful practice complained of...." ( § 12960.) If conciliation fails, Department may issue an accusation to be heard by the Fair Employment and Housing Commission (Commission). ( §§ 12903, 12963.7, 12965, subd. (a), 12969.)

If the Commission finds a violation, it issues a cease and desist order and may grant other appropriate relief. ( § 12970, subd. (a).) If no accusation is issued by the Department, it must give the aggrieved person notice and a right-to-sue letter. ( § 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.) The aggrieved person may bring a civil action against the "person, employer, labor organization or employment agency" named in the charge within one year after receiving notice. ( § 12965, subd. (b).) In order to bring a civil action under FEHA, the aggrieved person must exhaust the administrative remedies provided by law. (Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 890, 220 Cal.Rptr. 684; Myers v. Mobil Oil Corp. (1985) 172 Cal.App.3d 1059, 1063, 218 Cal.Rptr. 630; Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 866, 193 Cal.Rptr. 760.

Plaintiff's administrative charge, filed on May 23, 1985, named hospital only as the respondent and alleged sex discrimination only, i.e., that she was denied equal pay for equal work because of her gender.

Under the FEHA it is an unlawful employment practice for an employer or the agent of an employer to harass an employee because of age. ( § 12940, subd. (h).)

Apparently there is no California decision addressing the question presented here, i.e., whether plaintiff failed to exhaust her administrative remedies by not first filing her claim of age harassment with the Department. However, there is analogous federal authority to which we may look for assistance in the resolution of the exhaustion issue. (See County of Alameda v. Fair Employment & Housing Com. (1984) 153 Cal.App.3d 499, 504, 200 Cal.Rptr. 381.)

Ong v. Cleland (9th Cir.1981) 642 F.2d 316, 318, arose under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). Ong had filed an administrative charge alleging she was denied a job promotion on the ground of national origin. During the administrative process, she took a disability retirement, allegedly as a result of her employer's illegal conduct.

In a subsequent civil action, Ong's complaint alleged she was "constructively discharged" by a discriminatory promotional decision, a claim not presented in the administrative forum. The district court entered summary judgment against Ong, concluding she had failed to exhaust her administrative remedies. (Id., at pp. 317, 318, 319.) The Court of Appeals affirmed, holding Ong's failure to exhaust her administrative remedies frustrated the policy of Title VII to promote conciliation of employment discrimination charges. (Id., at p. 320.) A plaintiff suing under Title VII is subject to an exhaustion requirement before commencing judicial action. (Id., at p. 318.) Whether the plaintiff has met that requirement depends on an analysis of the "fit" between the administrative charge and the lawsuit. (Ibid.) The test for that "fit" is whether the alleged discriminatory acts in the lawsuit are "like or reasonably related to" the allegations contained in the administrative charge. (Ong, supra, 642 F.2d at p. 320.) "The absence of a perfect ' "fit" ' between the administrative charge and the judicial complaint is therefore not fatal to judicial review if the policies of promoting conciliation and avoiding bypass of the administrative process have been served." (Id., at p. 319.) For example, where the administrative charge alleged a pattern of discrimination or continuous retaliation, it was appropriate to allege subsequent unlawful conduct in the lawsuit. (Ramirez v. Nat. Distillers and Chemical Corp. (9th Cir.1978) 586 F.2d 1315, 1320; Van Hoomissen v. Xerox Corp. (N.D.Cal.1973) 368 F.Supp. 829, 833-834, cited in Ong v. Cleland, supra, 642 F.2d at p. 319.)

The Ong court noted plaintiff did not allege in her administrative charge that her employer had engaged in a "pattern or practice" of discrimination against her. (Ong, supra, 642 F.2d at p. 320.) Nor did she attempt to amend the charge to include events occurring after it was filed. (Ibid.) The court determined that, because the issue of Ong's disability retirement was not presented administratively, the agency was precluded from considering that claim before initiation of the lawsuit. (Ibid.) Accordingly, the court found Ong's administrative charge of discrimination in promotion did not encompass her judicial cause of action for constructive discharge and that she failed to meet the exhaustion requirement. (Ibid.)

Here, plaintiff's administrative charge alleged only gender discrimination based on unequal pay. It named hospital as the sole discriminating party. The administrative charge, filed almost a year before the alleged age harassment by...

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