From Daily Journal, 12/02/03

City Workers' Right to Sue OK'd

The high court says city grievance rules can be bypassed with a state agency's consent.

By John Roemer

A stressed-out Los Angeles parks department worker who exclaimed "I quit!" during a tense meeting with his bosses can sidestep municipal grievance rules and sue the city for disability discrimination on the state's say-so, a sharply divided state Supreme Court held Monday.

By a 5-2 vote, the court rejected the city of Los Angeles' contention that former employee Steve Schifando, 46, has to jump through two hoops - the city's internal procedures and the state's administrative remedies - before going to court.

A "right to sue" letter from the state Department of Fair Employment and Housing is enough, Justice Ming W. Chin wrote for the majority. Schifando v. City of Los Angeles, 2003 DJDAR 12925.

The decision has been eagerly awaited by employee rights advocates on Schifando's side and by a coalition of 61 California cities aligned with defendant Los Angeles. It reaffirms the state Fair Employment and Housing Act's preemption of local ordinances.

"We hold that municipal employees who claim they have suffered employment-related discrimination need not exhaust City Charter internal remedies prior to filing a claim with the Department [of Fair Employment and Housing]," Chin wrote.

Chief Justice Ronald M. George and Justices Joyce L. Kennard, Kathryn Mickle Werdegar and Carlos R. Moreno concurred.

But Justice Marvin R. Baxter warned in dissent that the decision will cause mischief.

"The majority's holding could effectively eviscerate the municipality's internal remedies for redressing employment discrimination afforded city employees under the city charter," Baxter wrote, joined by Justice Janice Rogers Brown.

Schifando, a storekeeper for Los Angeles' parks and recreation department, suffered from severe hypertension that left him dizzy and lightheaded in stressful situations. One of his supervisors allegedly admitted that one goal of a 1998 meeting over his job responsibilities was to argue with Schifando and cause him to "blow his top" due to his medical condition.

The ploy worked: Schifando's face reddened, he sweated profusely and he had trouble breathing. Finally, fearing to continue what he believed to be a dangerous confrontation, he exclaimed, "I can't take it any more; I quit!"
One of the supervisors handed him a resignation form to sign.

Los Angeles Superior Court Judge Morris Bruce Jones dismissed Schifando's discrimination suit on technical grounds. But the issue sharpened following his appeal when lawyers for Los Angeles raised the claim that Schifando could not proceed because he had failed to exhaust the city's administrative remedies.

A Los Angeles appeal court held that Schifando was required to undergo the FEHA and the city's processes before he could sue. Monday's ruling overturns that result.

Chin explained the difference between state and local review of municipal employee grievance claims. The state Fair Employment and Housing Commission "is a neutral body, disinterested in the controversy between employer and employee," Chin wrote.

But a municipal grievance finder of fact "occupies the role of both defendant and judge," Chin wrote, citing the leading case, State Personnel Board v. Fair Employment & Housing Commission, 39 Cal.3d 422 (1985).

For that reason, he added, "The benefits of judicial economy, agency expertise and potential for swift resolution of grievances are better served by a rule that allows aggrieved public employees to seek redress in the forum that is most appropriate to their situation."

David Duchrow, who argued the case before the high court for amici California Employment Lawyers Association, said Monday that the decision underscores the FEHA's civil rights importance.

"This is victim-enforced legislation that overrides perpetrators' ability to review the propriety of their conduct," said Duchrow of the Los Angeles Law Office of David Duchrow.

Nine other groups joined Schifando as amici, including Equal Rights Advocates, Asian Law Caucus, California Teachers Association, San Francisco's Employment Law Center and California Women's Law Center.

Equal Rights Advocates' Charlotte E. Fishman drafted a joint amicus brief for the groups.

Zna Portlock Houston, a Los Angeles assistant city attorney, predicted the decision's effect will be limited by its narrow fact pattern and by the chance employees will take if they bypass local grievance channels.

"If an employee loses on an FEHA claim, the employee then has lost the chance to use city civil service procedures," Houston pointed out.

Arlene Prater, representing 61 California cities as amici for defendant Los Angeles, called the decision disappointing.

"This is really tough on cities," said Prater, of San Diego's Best Best & Krieger. "It's a big deal. We were really hoping for a victory. Municipal grievance procedures give employers a real opportunity to resolve things without going outside. When attorneys get involved, it'll often elevate things and cost the city more money."
The University of California Board of Regents also appeared as amici for Los Angeles.

Schifando's attorney, Robert M. Ball of Beverly Hills, said his client's lawsuit at last can get under way.
"Now we go back to pursue our claim, after all these years," he said.

During the appeal, Ball added, he chided the city attorney's lawyers at the defense table, joking, "I know you guys want me to win, because if I lose, you won't have any FEHA rights."

Opposing counsel just smiled, Ball said.