From The Recorder, 12/02/03

Public workers Can Complain Directly to FEHA

By Alexei Oreskovic

Municipal employees who suffer on-the-job discrimination can bypass their employer's internal grievance procedures and seek relief directly with the state's anti-discrimination agency, the state Supreme Court ruled Monday.

In a decision viewed as a boon to all public sector employees, justices held that a plaintiff has the right to choose whether to pursue a discrimination complaint internally or through the Fair Employment and Housing Commission. But the plaintiff is not required to exhaust internal procedures in order to file a complaint with FEHA.

"The opportunity for all public and private employees to vindicate civil rights is the primary intent of the FEHA, and … this is why plaintiffs have a choice between their civil service remedies and those provided by the FEHA," Justice Ming Chin wrote for the majority in Schifando v. City of Los Angeles, 03 C.D.O.S. 10290.

In a 21-page dissent, Justice Marvin Baxter said the majority's decision would "eviscerate" the municipality's internal remedies and burden the courts with expensive litigation.

"Under the majority's holding, the road to possible conciliation, amicable settlement or mitigation of damages will first have to pass through the courthouse," wrote Baxter, who was joined by Justice Janice Rogers Brown in the dissent.

He also said the decision was "patently at odds" with the court's Nov. 24 decision in Department of Health Services v. Superior Court of Sacramento County, 03 C.D.O.S. 10088, which limited damages for a plaintiff who does not report incidents of harassment to an employer, under the so-called avoidable consequence doctrine.
The case was closely watched by employment attorneys and drew amicus briefs on both sides from groups including the Regents of the University of California, the California Teachers Association and a consortium of 61 California cities, including San Jose, Santa Rosa and Alameda.

Charlotte Fishman, a staff attorney at Equal Rights Advocates who filed an amicus brief on behalf of various employee organizations, called the decision a "total victory for employees."
She said the decision did not supplant an employer's internal procedures, but gave workers the choice to pick the best forum.

"So the idea is if you have a really good [internal system], people will use it. But if you don't have a good one, people are going to go to the court system," Fishman said.

In Schifando, Steve Schifando claimed the city of Los Angeles discriminated against him because of a medical condition and coerced him into quitting his job as a storekeeper with the Parks and Recreation Department.

Schifando obtained a "right to sue" letter from FEHA and filed suit in superior court. But the city maintained that the suit was invalid since Schifando had not exhausted his administrative remedies under the charter of the city of Los Angeles before taking his grievance to court.

According to the Supreme Court, however, exhausting the city charter's procedures could effectively deprive Schifando of the rights afforded to all discrimination victims by the state Legislature.

The justices noted that the city charter procedures were not as plaintiff-friendly as those in FEHA, which provide for longer statutes of limitations and payment for attorney costs. And FEHA is a completely neutral forum, whereas the city is both the defendant and the judge.

Moreover, the court noted that being forced to navigate two separate administrative processes would force the plaintiff to walk a "procedural minefield," with the risk of missing filing deadlines in one forum while waiting to exhaust remedies in another forum.

"We do not serve judicial economy if we require employees who have allegedly suffered discrimination at the hands of public employers to pursue redress in two separate forums," Chin wrote. "To do so would frustrate legislative intent and create a procedural labyrinth that aggrieved employees, often not represented by counsel at the early stages of litigation, would likely be incapable of navigating."

In his dissent, Baxter said the majority's decision abrogated the well-established rule of exhaustion of administrative remedies. By first going through internal processes, the plaintiff gives an employer the chance to fix the problem.

FEHA, wrote Baxter, was intended to supplement existing anti-discrimination remedies, rather than supplant them.
Chin was joined by Chief Justice Ronald George and Justices Joyce Kennard, Kathryn Mickle Werdegar and Carlos Moreno.