CARMICHAEL v. ALFANO TEMPORARY PERSONNEL (1990)

INTRODUCTION

In this case plaintiff and appellant Malcolm Carmichael appeals from a judgment dismissing his complaint following entry of an order granting defendants Alfano Temporary Personnel's and Vincent Alfano's (collectively Alfano) motion for summary judgment.   We affirm.

Although Carmichael was not himself the direct victim of race or sex discrimination, in proceedings he brought before the federal Equal Employment Opportunity Commission (EEOC) Carmichael alleged Alfano discriminated against women and minorities.   Following termination of his employment he initiated additional proceedings before the EEOC and the California Department of Fair Employment and Housing (DFEH) in which he alleged his termination was in retaliation for his initial discrimination complaints.   Both the EEOC and the DFEH declined to pursue Carmichael's retaliation charges.

In the instant action for wrongful termination against Alfano, Carmichael again alleged he was terminated by Alfano because of his discrimination complaints.   The trial court granted Alfano's motion for summary judgment because it found his complaint was untimely under the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.).

On appeal, as he did below, Carmichael argues his claims are not subject to the time limits set forth in FEHA.   We disagree.   We find his retaliation claims did not exist at common law and hence are governed exclusively by the FEHA.

FACTUAL BACKGROUND

For the most part, the facts which give rise to this appeal are undisputed.   Carmichael, a white male, is a machinist.   Alfano is a personnel agency which provides temporary employees to various employers.   Carmichael began working for Alfano in August 1982.   On January 1, 1984, Alfano assigned Carmichael to work at the Upper Campus Machine Shop at the University of California at San Diego (UCSD Machine Shop).

Approximately 14 months later, on March 11, 1985, Carmichael filed a charge with the EEOC in which he alleged the UCSD Machine Shop was guilty of discrimination against women and minorities.   On May 23, 1985, the EEOC advised Carmichael it had no jurisdiction over his complaint because the UCSD Machine Shop was not his employer.

Carmichael filed a second charge with EEOC on June 3, 1985, in which he alleged Alfano was guilty of discrimination against women and minorities.   In particular he alleged “I believe the reason I am being discriminated against is because of my race, Caucasian, in that:  [¶]a. I believe I should be able to work with people of all races and sexes.   Since I have been at the UCSD work site I have worked only with Caucasian males.   I believe Alfano does not refer minorities and women to the UCSD Machine Shop.”

On June 5, 1985, Alfano removed Carmichael from his position at the UCSD Machine Shop and did not place him with any other employer.   Carmichael was told he was laid off because there was a lack of work at the UCSD Machine Shop.

Carmichael then filed charges with both the EEOC and the DFEH, alleging his termination was in retaliation for his EEOC complaints.¹

On July 19, 1985, the DFEH sent Carmichael a letter in which it advised him his retaliation claim had been referred to the EEOC and under Government Code section 12965, subdivision (b), he had one year from the date of the letter in which to file a complaint for damages against Alfano.

On June 5, 1986, the EEOC issued its determination of Carmichael's retaliation charge.   The EEOC found there was no reasonable cause to believe the charge and advised Carmichael he had 90 days in which to bring suit in district court.

PROCEEDINGS BELOW

On June 4, 1987, Carmichael filed the instant complaint in superior court.   Again he alleged he was terminated by Alfano in retaliation for the initial discrimination charges he filed with the EEOC.   Carmichael alleged his termination violated California's public policy and that Alfano was therefore liable to him for wrongful termination, violation of Labor Code section 1102.5, breach of the covenant of good faith and fair dealing and civil conspiracy.

Alfano removed the case to district court and moved for summary judgment on the grounds Carmichael's claims were time barred.   The district court remanded the case to superior court where Alfano renewed its motion for summary judgment.   The trial court granted the motion and judgment in favor of Alfano was entered.   Carmichael filed a timely notice of appeal.

ISSUES ON APPEAL

 On appeal Carmichael does not dispute that, if it applies, the one-year limitation period set forth in the FEHA, Government Code section 12965, subdivision (b), bars his claims.   Rather, as he did below, on appeal Carmichael argues his claims are not subject to the FEHA.   He argues his claims are based on common law principles which predate enactment of the FEHA.

DISCUSSION

IConflicting Interpretations of the FEHA

As the Court of Appeal for the Third District recently observed:  “FEHA creates a Department of Fair Employment and Housing (Department) [citation] whose function is to receive, investigate and conciliate complaints of unlawful employment discrimination.  [Citations.]  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․’  [Citation.]   If conciliation fails, [the] Department may issue an accusation to be heard by the Fair Employment and Housing Commission (Commission).  [Citations.]

“If the Commission finds a violation, it issues a cease and desist order and may grant other appropriate relief.  [Citation.]  If no accusation is issued by the Department, it must give the aggrieved person notice and a right-to-sue letter.  [Citations.]  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.  [Citation.]  In order to bring a civil action under FEHA, the aggrieved person must exhaust the administrative remedies provided by law.  [Citations.]”  (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1120–1121, 257 Cal.Rptr. 665 (Yurick ).)

There is currently some conflict in the law with respect to the effect the procedural requirements of the FEHA have on lawsuits which are based on alleged discrimination.  (Compare Yurick, supra, 209 Cal.App.3d at pp. 1122–1123, 257 Cal.Rptr. 665;  Ficalora v. Lockheed Corp. (1987) 193 Cal.App.3d 489, 492–493, 238 Cal.Rptr. 360 (Ficalora );  and Strauss v. A.L. Randall Co. (1983) 144 Cal.App.3d 514, 518–519, 194 Cal.Rptr. 520 (Strauss ) [statutory procedure is exclusive remedy for employment discrimination] with Froyd v. Cook (E.D.Cal.1988) 681 F.Supp. 669, 673–676 (Froyd ) [FEHA is a cumulative remedy under some circumstances and does not necessarily displace plaintiff's right to sue for discriminatory termination].)   However there is no conflict about pertinent principles of statutory construction.  “California's courts have developed a very specific method of construing the relationship between remedial statutes and preexisting common law rights.   As the leading commentator on California law puts the doctrine, ‘[i]f a right was established at common law or by statute before the new statutory remedy was created, the statutory remedy is usually regarded as merely cumulative, and the older remedy may be pursued at the plaintiff's election.’   3 Witkin, California Procedure § 8 at 39 (3d ed. 1985);  see also Hentzel v. Singer Company, 138 Cal.App.3d 290, 303 [188 Cal.Rptr. 159] ․ (1982) (‘Generally, “where a statutory remedy is provided for the enforcement of a preexisting common law right, the newer statutory remedy will be considered only cumulative.” ’)  Id., quoting Flores v. Los Angeles Turf Club, 55 Cal.2d 736, 747 [13 Cal.Rptr. 201, 361 P.2d 921] ․ (1961).”  (Froyd, supra, 681 F.Supp. at p. 674.)   Conversely “ ‘[w]here a new right is created by statute, the party aggrieved by its violation is confined to the statutory remedy if one is provided.’ ”   (Ibid., quoting Palo Alto–Menlo Park Yellow Cab Company v. Santa Clara County Transit District (1976) 65 Cal.App.3d 121, 131, 135 Cal.Rptr. 192;  see also Strauss, supra, 144 Cal.App.3d at p. 518, 194 Cal.Rptr. 520.)

The dispute has arisen when courts have been asked to apply these general principles to particular claims cognizable under the FEHA.   For instance in Strauss the plaintiff alleged he was the victim of age discrimination in violation of former Labor Code section 1420.1.²  He alleged the statutory violation contravened public policy and hence under the holding in Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 177, 164 Cal.Rptr. 839, 610 P.2d 1330, the violation gave rise to a claim for wrongful termination independent of the FEHA.   In finding the wrongful termination claim was subject to the procedural requirements imposed by the FEHA, the court found the statute which prohibited age-discrimination was “ ‘in no sense declaratory of preexisting common law doctrine but rather include[d] areas and subject matters of legislative innovation, creating new limitations on an employer's right to hire, promote or discharge its employees.’ ”  (Strauss, supra, 144 Cal.App.3d at p. 518, 194 Cal.Rptr. 520, quoting Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 490, 156 Cal.Rptr. 14, 595 P.2d 592.) ³

In Ficalora the plaintiff filed a complaint with the EEOC charging her employer was guilty of sex discrimination in hiring and promotion.   One month later she was laid off.   Although she filed a retaliation charge with the DFEH, she did not bring an action within one-year of receiving a “right-to-sue” letter from the agency as required by Government Code section 12965, subdivision (b).   As in Strauss, the Court of Appeal found no common law precursor to the plaintiff's claims and affirmed a judgment dismissing her complaint.⁴

In Yurick the Court of Appeal followed Ficalora in holding that an employer's retaliation for pursuit of sex discrimination charges was itself governed by the provisions of the FEHA.  (Yurick, supra, 209 Cal.App.3d at pp. 1122–1123, 257 Cal.Rptr. 665.)

In contrast to these cases, in Froyd the court found that a plaintiff's claims against a city police department for sexual harassment and retaliatory discharge did not fall within the exclusive ambit of the FEHA.   The court noted that while the age discrimination claims discussed in Strauss had no common law precursor, that fact did not mean other types of discrimination covered by the act—e.g. sex and race discrimination—lacked a common law basis.  (Froyd, supra, 681 F.Supp. at pp. 675–676.)  “Assuming that prior to FEHA, California did not protect age discrimination in employment, reliance upon Gay Law Students to determine an age discrimination case may be justified.   Reliance on homosexual and age cases, however, to extend the result to sex discrimination, or retaliatory discharge, without examination of the common law prior to FEHA appears wholly unjustified.   It may be that prior to FEHA protection against discrimination in employment based upon age did not exist.   Whether that argument is correct or not simply is irrelevant to discrimination on other bases.   An examination of the preexistent common law demonstrates that prior to the enactment of FEHA, California's public policy prohibited both employment discrimination based on sex and adverse job actions against public employees premised on their objecting to the conditions of their employment.”  (Id. at p. 676.)

In finding a common law basis for the claim before it, the court in Froyd relied upon article 1, section 8 of the California Constitution which provides:  “A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin.”   The court noted the predecessor to this provision, former article XX, section 18, had been used as early as 1881 to invalidate an ordinance prohibiting women from working in dance-cellars.  (See Matter of Maguire (1881) 57 Cal. 604.)   With respect to the plaintiff's retaliation claim, the court found that the right of a public employee to complain in a proper manner about the conditions of employment was well established in California law.  (Froyd, supra, 681 F.Supp. at p. 676.) ⁵

As Alfano notes, Froyd is distinguishable from this case because unlike the employer there, Alfano is not a public agency.   Given this limitation on the holding in Froyd, we agree with Alfano that the view of history expressed in Froyd is of limited use in determining whether Carmichael's claim existed before enactment of FEPA.   However, Froyd is helpful because it emphasizes that in resolving Carmichael's claim we must carefully examine the protection the common law provided to employees in the private sector prior to enactment of FEPA.

II

Prior to FEPA the Common Law Did Not Prevent Private Acts of Employment Discrimination

With respect to those cases where, as here, an employee is claiming he was terminated in breach of public policy, our Supreme Court has recently stated:  “We do not decide in this case whether a tort action alleging a breach of public policy under Tameny may be based only on policies derived from a statute or constitutional provision or whether nonlegislative sources may provide the basis for such a claim.   Even where, as here, a statutory touchstone has been asserted, we must still inquire whether the discharge is against public policy and affects a duty which inures to the benefit of the public at large rather than to a particular employer or employee.   For example, many statutes simply regulate conduct between private individuals, or impose requirements whose fulfillment does not implicate fundamental public policy concerns.  [Italics ours.]   Regardless of whether the existence of a statutory or constitutional link is required under Tameny, disparagement of a basic public policy must be alleged.”  (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 669, 254 Cal.Rptr. 211, 765 P.2d 373.)   Thus, in this case, Carmichael's right to pursue his claim turns upon whether, in the absence of FEHA, it can be said his conduct was protected by fundamental public policy.

Prior to 1959, when the employment discrimination provisions of FEPA were enacted, the ability of employees to protect themselves, let alone others, from racial discrimination was limited to those situations where they could show their employers were public agencies or were engaged in at least quasi-public activities.   In particular we note that in James v. Marinship Corp. (1944) 25 Cal.2d 721, 155 P.2d 329 (Marinship ), our Supreme Court found that labor unions which had obtained closed-shop agreements from employers could not discriminate on the basis of race.   The Supreme Court found that by obtaining the monopoly provided by a closed-shop agreement, a union was acting in a quasi-public capacity and therefore had given up any right to arbitrarily exclude persons from its membership.  (Id. at p. 731, 155 P.2d 329.) ⁶

Relying on Marinship in Hughes v. Superior Court (1948) 32 Cal.2d 850, 854–856, 198 P.2d 885 (Hughes ), the court upheld an injunction preventing picketing at a chain of supermarkets by a group demanding that the chain hire employees in direct proportion to the racial makeup of each store's patrons.   The court found the goal of the picketing was unlawful under Marinship and hence subject to judicial restraint.   In extending Marinship the court took pains to find the defendants were seeking the functional equivalent of the closed shop the court had considered in Marinship.  “If Lucky had yielded to the demands of petitioners, its resultant hiring policy would have constituted, as to a proportion of its employes, the equivalent of both a closed shop and a closed union in favor of the Negro race.   It would have had no choice but to employ only members of the Negro race in a fixed number of clerical positions, thus effectuating a closed Negro shop as to those positions.   Moreover, because race and color are inherent qualities which no degree of striving or of other qualifications for a particular job could meet, those persons who are born with such qualities constitute, among themselves, a closed union which others cannot join.”   (Hughes, supra, 32 Cal.2d at p. 856, 198 P.2d 885.)

Contrary to the suggestion of one commentator,⁷ we do not believe Marinship and Hughes established a fundamental public policy the breach of which would support a common law claim for racial discrimination against private employers.   In his dissent in Hughes, then Justice Traynor pointed out the limitations of the court's holding and the lack of any remedy for racial discrimination.  “Those racial groups against whom discrimination is practiced may seek economic equality either by demanding that hiring be done without reference to race or color, or by demanding a certain number of jobs for members of their group.   The majority opinion holds that economic equality cannot be sought by the second method if picketing is adopted as the means of attaining that objective.   In the absence of a statute protecting them from discrimination it is not unreasonable for Negroes to seek economic equality by asking those in sympathy with their aims to help them secure jobs that may be opened to them by the enlistment of such aid.   In their struggle for equality the only effective economic weapon Negroes have is the purchasing power they are able to mobilize to induce employers to open jobs to them.  [Citations.]  There are so few neighborhoods where Negroes can make effective appeals against discrimination that they may reasonably regard the seeking of jobs in neighborhoods where their appeal may be effective the only practical means of combating discrimination against them.   In arbitrating the conflicting interests of different groups in society courts should not impose ideal standards on one side when they are powerless to impose similar standards upon the other.   Only a clear danger to the community would justify judicial rules that restrict the peaceful mobilization of a group's economic power to secure economic equality.  [Citations.]  There is no reality in the reasoning that those who seek to secure jobs where they have an opportunity to enlist public support on their behalf are thereby seeking illegal discrimination in their favor, for the fact remains that everywhere they turn for jobs they are likely to encounter the barrier of discrimination.

“․ Had California adopted a fair employment practices act that prohibited consideration of the race of applicants for jobs, it might be said that the demand for proportional hiring would be a demand that Lucky violate the law.   Neither the Legislature nor the people have adopted such a statute, and I find no implication in the majority opinion that its equivalent exists under the common law of this state.”  (Hughes, supra, 32 Cal.2d at pp. 868–869, 198 P.2d 885, italics added.)

We share Chief Justice Traynor's view that the result reached in Hughes was limited.   The court's continued reliance on the Marinship rationale suggests that although the court was unwilling to uphold agreements which would foster discrimination, the court nonetheless had not pronounced a policy which would protect citizens from all forms of racial discrimination in employment.   Thus while the holdings in Marinship and Hughes prevented employers from agreeing with others to discriminate, those cases did nothing to prevent employers from practicing discrimination on their own.   In this sense our Supreme Court did not go very much further than the United States Supreme Court in Shelley v. Kraemer (1948) 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, which found that courts could not enforce racially restrictive covenants.   Neither Marinship, Hughes nor Shelley v. Kraemer, offered any remedy for more pervasive and damaging “private” acts of racial discrimination in employment and housing.

Our conclusion that public policy did not prevent private acts of discrimination is buttressed by the fact that aside from Marinship and Hughes, we have been unable to find any reported decisions prior to 1959 in which a plaintiff was allowed to proceed against a private employer on a claim of racial discrimination.   Our conclusion about the limited nature of common law remedies for racial discrimination in employment is also supported by the legislative history of FEPA.

Fair employment laws originated in this county in 1941 when President Franklin D. Roosevelt issued an executive proclamation prohibiting race discrimination in government defense contracts.  (Exec. Order No. 8802, 6 Fed.Reg. 3109 (June 27, 1941).)   Roosevelt's proclamation was issued after labor leader A. Phillip Randolph warned that 100,000 Black workers were prepared to march on Washington D.C. to protest job discrimination.  (Department of Fair Employment and Housing, The Fair Employment and Housing Act:  30 Years of Progress Towards Human Dignity (1989) 1 (30 Years of Progress).)   When the wartime Fair Employment Practice Commission was disbanded in 1945, civil rights groups caused fair employment legislation modeled on the commission's procedures to be introduced in California, New York, Pennsylvania, Massachusetts and New Jersey.   Of the five states only California failed to enact fair employment legislation in 1945.  (Gelb & Frankfurt, California's Fair Employment and Housing Act:  A Viable State Remedy for Employment Discrimination (1983) 34 Hastings L.J. 1055, 1057.)   A fair employment initiative was rejected by the voters in 1946 by a two-to-one margin and fair employment bills were rejected by the Legislature in 1947, 1949, 1951 and 1953.  (Ibid.)

 Thereafter a coalition of labor, community groups, religious leaders, minority leaders and others was formed and called the “California Committee on Fair Employment Practice.”   The committee became known as the “Cal Committee” and in 1955 it presented the Legislature with a Los Angeles Urban League study which showed that of “238 bank branches in the city, only four (in Black areas) employed Blacks in other than custodial jobs.   The study also showed that no Blacks had customer contact jobs in Los Angeles department stores, nor were any employed as waiters or waitresses in Class A hotels.   Only one major oil company employed Blacks above the custodial level.”  (30 Years of Progress, supra, pp. 1–2.)   Finally in 1959, after 14 years of effort, FEPA was passed by the Legislature and signed by the Governor.⁸

In our view this lengthy history of opposition both by the electorate and in the Legislature is powerful and sad evidence that prior to enactment of FEPA public policy in California countenanced racial discrimination by private employers.   Were we to make any contrary finding we would turn a blind eye to the injustice millions of this state's citizens endured and the herculean efforts of those who, in the end, succeeded in giving us FEPA.   A generation after their struggle ended we are unwilling to suggest to FEPA's sponsors that they need not have bothered because they had a common law remedy all along.   Nothing in Marinship, Hughes or the prestatutory employment practices of this state's banks, hotels, department stores and oil companies supports such a rosey picture of our state's history.

 The question we must resolve then is whether, given its limitations, the common law distaste of employment discrimination nonetheless supports Carmichael's claim against Alfano.   As we have seen, Carmichael alleges he complained about unwritten policies which prevented women and minorities from working at the UCSD Machine Shop.⁹  He claims that in retaliation for his complaints he was terminated by his private employer, Alfano.   Significantly Carmichael has not claimed he was an employee of a public agency, or that his race or sex prevented him from continuing his employment. Thus, unlike the plaintiff in Froyd, Carmichael cannot rely upon the right of public employees to complain about their working conditions and, unlike the plaintiffs in Marinship, he cannot argue his race prevented him from keeping his job. Rather the heart of Carmichael's claim is that Alfano's retaliation promoted the largely hidden and private discrimination which FEPA was designed to remedy. Indeed we note that unlike the pre-FEPA common law, Government code section 12940, sybduvusuib (f), expressly prohibits retaliation against any person who has opposed discriminatory employment practices.¹⁰ Accordingly in order to establish the unlawfulness of Alfano's practices, and his right to resist them, Carmichael must rely on FEPA's statutory successor, FEHA.

As we have seen, Carmichael did not meet the time requirements of FEHA.   In light of our conclusion Carmichael's claims are governed by FEHA, the trial court did not err in granting summary judgment.

Judgment affirmed.

FOOTNOTES

1.   On August 8, 1985, Carmichael filed a fourth charge with EEOC in which he again alleged Alfano and the UCSD Machine Shop were guilty of race and sex discrimination.   On June 24, 1986, the EEOC determined there was no reasonable cause to believe this charge and advised Carmichael he had 90 days in which to bring suit in district court.

2.   The employment discrimination provisions of the FEHA were initially enacted as the Fair Employment Practice Act (FEPA) and codified in the Labor Code.  (Stats.1959, ch. 121, § 1, p. 1999.)

3.   The rationale employed in Strauss was followed in Mahoney v. Crocker Nat. Bank (N.D.Cal.1983) 571 F.Supp. 287, 292–293;  Salgado v. Atlantic Richfield Co. (9th Cir.1987) 823 F.2d 1322, 1327;  Baker v. Kaiser Aluminum & Chem. Corp. (N.D.Cal.1984) 608 F.Supp. 1315, 1322;  Hudson v. Moore Business Forms, Inc. (D.C.Cal.1985) 609 F.Supp. 467, 474, aff'd in part, vacated in part on other grounds, 827 F.2d 450, as amended 836 F.2d 1156.  (Cf. Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal.App.3d 941, 949, 231 Cal.Rptr. 234 [right of action under FEHA did not accrue until right to sue letter issued by department];  Robinson v. Hewlett–Packard Corp. (1986) 183 Cal.App.3d 1108, 1125–1126, 228 Cal.Rptr. 591 [FEHA exclusive remedy for claims of racial discrimination in employment].)

4.   In Ficalora the court went one step further than the court in Strauss.   In addition to finding no common law precursor to the plaintiff's claims, the Ficalora opinion states:  “Even if a common law cause of action existed before retaliation was identified in the [FEHA] as an unlawful employment practice, the Legislature has made clear its intent to ‘occupy the field of regulation of discrimination in employment’ by virtue of the FEHA.  (§ 12993, subd. (c).)  We therefore find that appellant's sole cause of action for retaliation is the statutory cause of action.”  (Ficalora, supra, 193 Cal.App.3d at p. 492, 238 Cal.Rptr. 360.)   The provision relied upon in Ficalora, Government Code section 12993, subdivision (c), provides:  “While it is the intention of the Legislature to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of this part, exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other politicial subdivision of the state, nothing contained in this part shall be construed in any manner or way, to limit or restrict the application of section 51 of the Civil Code.”

5.   In Froyd the court found the express preemption provided by the Legislature in FEHA, and relied upon by the court in Ficalora (see fn. 8, ante ), was meant to preempt local regulation by cities, counties and other political subdivisions of the state rather than common law claims.   Because, as we explain infra, we find no common law claim for discrimination practiced by private employers, we do not reach the question of express preemption discussed in Ficalora and Froyd.

6.   “Although the constitutional provisions have been said to apply to state action rather than to private action, they nevertheless evidence a definite national policy against discrimination because of race or color.   Defendants contend that ‘individual invasion of individual rights' can be prohibited only by a statute of the state, and they point out that California statutes forbidding racial discrimination by private persons relate only to certain specifically enumerated businesses such as inns, restaurants, and the like, but not to labor unions (Civ.Code, §§ 51–52).   It has been said, however, that such statutes, to the extent that they embrace public service businesses, are merely declaratory of the common law.  [Citations.]  It was well established at common law that innkeepers and common carriers were under a duty to furnish accommodations to all persons, in absence of some reasonable ground [citation], and if colored persons are furnished separate accommodations they must be equally safe, commodious and comfortable.  [Citations.]  The analogy of the public service cases not only demonstrates a public policy against racial discrimination but also refutes defendants' contention that a statute is necessary to enforce such a policy where private rather than public action is involved.   Where, as here, a labor union has attained a monopoly of the labor supply through closed shop agreements, such a union, like a public service business, may not unreasonably discriminate against Negro workers for the sole reason that they are colored persons.”  (James v. Marinship Corp., supra, 23 Cal.2d at p. 740, 155 P.2d 329.)

7.   See Oppenheimer and Baumgartner, Employment Discrimination and Wrongful Discharge:  Does the California Fair Employment and Housing Act Displace Common Law Remedies (1989) 23 U.S.F. Law Review 145, 189–191.

8.  In 1959 the Legislature also enacted Civil Code sections 51 and 52, the Unruh Civil Rights Act, which prohibits racial discrimanation in ” accommodations, advantages, facilities, privileges, or services in all business establishments.” (Civ.Code, § 51.) Contrary to Carmichael's argument, section 51 did not provide any relief from racial discrimination in employment. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 500, 86 Cal.Rptr. 88, 468 P.2d 216.)

9.  In his petition for rehearing Carmichael argues for the first time that the potential involvement of officials of the University of California in his termination would support pre-FEPA claims under Title 42, United States Code sections 1981 and 1983, which Congress enacted respectively in 1868 and 1871. However, these federal civil rights statutes do not extend the period in which Carmichael could file a complaint against Alfano. In Goodman v. Lekens Steel Co. (1987) 482 U.S. 656, 661-662, 107 S.Ct. 2617, 96 L.E.2d 572 and Wilson v. Garcia (1985) 471 U.S. 261, 278-280, 105 S.Ct. 1938, 85 L.E.2d 254, the Supreme Court held that Title 42 United States Code sections 1981 and 1983 are goverened by each state's limitation period for personal injury actions. In California Code of Civil Procedure section 340, subdivision 3, provides a one-year limitation period for actions for ” injury to or death of one caused by the wrongful act or neglect of another.” Since Alfano was terminated in 1985, his 1987 complaint would be untimely under Code of Civil Procedure section 340, subdivision 3, and hence untimely under Title 42, United States Code sections 1981 and 1983.

10.  Government Code section 12940, subdivision (f), provides that it is unlawful ‘For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any porceeding under this part.”

BENKE, Associate Justice.

KREMER, P.J., and NARES, J., concur.