ROJO v. KLIGER (1988)

Plaintiffs and appellants Emma Rojo (Rojo) and Teresa Maloney (Maloney) (collectively appellants) appeal a grant of summary judgment in favor of defendants and respondents Irwin H. Kliger, an individual, and Irwin H. Kliger, M.D., a medical corporation (collectively Kliger) on their sexual harassment claims.¹

Because pursuing the administrative remedy afforded by the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.) ² is not a condition precedent to seeking redress in a civil action for gender-based employment discrimination, the judgment is reversed.

FACTUAL & PROCEDURAL BACKGROUND

On August 29, 1986, appellants filed a “Complaint for Violation of Civil Rights and Intentional Infliction of Emotional Distress” in the superior court.

The complaint alleged:  Rojo and Maloney, adult females, were employed by Kliger;  during the term of their employment, they were subjected by Kliger to sexually harassing remarks and demands for sexual favors;  Kliger implied their acquiescence would ensure their continued employment;  Kliger's conduct violated their rights under section 12940, of the FEHA, and was intentional and malicious and in disregard of the fact that Rojo and Maloney would suffer humiliation and emotional distress.

Kliger answered, denied the allegations, and asserted various affirmative defenses, including assumption of the risk and comparative negligence.   Kliger then moved for summary judgment on the ground Rojo and Maloney had failed to pursue or exhaust their exclusive remedy under the FEHA.

In opposition papers, Rojo and Maloney argued that pursuit of the administrative remedy is not a condition precedent to maintaining an action based upon sexual employment discrimination.   They also maintained the FEHA did not preempt existing state law, but only local governmental law.

Additionally, appellants' papers cited their deposition testimony as to Kliger's offensive remarks and uninvited intimate touching.   Finally, the papers indicated appellants would request leave to amend their complaint to seek damages for assault and battery and wrongful discharge, among other causes of action.

On October 8, 1987, Rojo and Maloney filed a motion for leave to file a proposed first amended complaint.   The summary judgment motion was heard the same day.

 The trial court was unpersuaded by appellants' opposition papers, and ruled no authority permitted a sex discrimination claim to be filed directly in the superior court, and that their first recourse was to FEHA administrative proceedings.   After a brief hearing, it granted summary judgment for Kliger.³

CONTENTIONS

Appellants contend the FEHA does not preempt the field of regulation of gender-based employment discrimination, and that pursuing and exhausting the statute's administrative remedy is not a condition precedent to their maintaining a civil action against Kliger.

Kliger urges, and the trial court found, appellants' allegations fall within the scope of the FEHA, and the doctrine of exhaustion of administrative remedies bars appellants' suit.

DISCUSSION

1. Statutory scheme.

The California Fair Employment Practice Act (FEPA) was passed in 1959 (former Lab.Code, § 1410 et seq.) and recodified in 1980 as part of the FEHA.

“ ‘The law establishes that freedom from job discrimination on specified grounds, ․ [including sex] is a civil right.  (§ 12921.)   It declares that such discrimination is against public policy (§ 12920) and an unlawful employment practice (§ 12940).  [Fn. omitted.]’  [Citation.]  The statute creates two administrative bodies:  the Department of Fair Employment and Housing (the department) (§ 12901), whose function is to investigate, conciliate, and seek redress of claimed discrimination (§ 12930), and the [Fair Employment and Housing Commission], which [commission] performs adjudicatory and rulemaking functions (§ 12935, see also § 12903).   An aggrieved person may file a complaint with the department (§ 12960), which must promptly investigate (§ 12963).   If the department deems a claim valid it seeks to resolve the matter—in confidence—by conference, conciliation, and persuasion.  (§ 12963.7.)   If that fails or seems inappropriate, the department may issue an accusation to be heard by the commission.  (§§ 12965, subd. (a), 12969.)   The department acts as prosecutor on the accusation and argues the complainant's case before the commission.  [Citations.]”  (Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1383–1384, 241 Cal.Rptr. 67, 743 P.2d 1323.)

If no accusation is issued within 150 days after the filing of a complaint, or if the department earlier determines not to prosecute the case, and the matter is not otherwise resolved, the department must give the complainant a “right-to-sue” letter.   Only then may that person bring a civil suit in the superior court.  (§ 12965, subd. (b)).  (Dyna–Med, Inc. v. Fair Employment & Housing Com., supra, at p. 1384, 241 Cal.Rptr. 67, 743 P.2d 1323;  Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 213–214, 185 Cal.Rptr. 270, 649 P.2d 912.)

The broad goal of the FEHA is set forth at section 12920, which states:  “It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age.”

2. Examination of relevant statutes discloses limited scope of FEHA.

(a) Principles of statutory interpretation.

The applicable rules of statutory interpretation are found in Brown v. Superior Court (1984) 37 Cal.3d 477, 208 Cal.Rptr. 724, 691 P.2d 272, wherein our Supreme Court was required to construe another portion of the FEHA.

“ ‘The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law.  [Citations.]  Moreover, “every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.”  [Citation.]’  [Citation.]  A construction rendering statutory language surplusage ‘ “is to be avoided.” ’  [Citations.]  [¶] To determine the Legislature's intent, the court looks first to the words of the statute.  [Citation.]  However, the legislative purpose will not be ‘sacrificed to a literal construction of any part of the act.’  [Citation.]  The language of a statute ‘ “ ‘should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.’ ”   [Citations.]'  [Citation.]”  (Id., pp. 484–485, 208 Cal.Rptr. 724, 691 P.2d 272.)

Mindful of the above principles, the applicable code sections are construed.

(b) Relevant statutes within the statutory scheme.

 FEHA section 12993, added in 1980, deals with the continuation of other laws relating to discrimination.   Subdivision (c) thereof declares the Legislature's intent to preempt local laws in the field.   It states:  “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, [⁴ ] exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political 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.”  (Italics added.) ⁵

A narrow reading which failed to address the italicized portion of section 12993, subdivision (c), set out above, would overlook the Legislature's stated intention to occupy the field only to the exclusion of local laws.

An example of a narrow reading which led to a misinterpretation of the FEHA is found in Ficalora v. Lockheed Corp. (1987) 193 Cal.App.3d 489, 491, 238 Cal.Rptr. 360.   There, the trial court granted summary judgment for an employer in an action by an employee claiming she was discharged in retaliation for having challenged the employer's sex discrimination practices.   The Ficalora court affirmed, holding that “[e]ven 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).)”  (Id., at p. 492, 238 Cal.Rptr. 360, italics added.)   The Ficalora court thus gave no recognition to the limiting language set forth in said subdivision.

Likewise, in Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464, 1472, 249 Cal.Rptr. 578, where the plaintiff alleged employment discrimination based on ancestry, race, sex and age, the court stated:  “The Act is an attempt by the Legislature to ‘occupy the field ’ of regulation of discrimination in employment and housing (Gov.Code, § 12993, subd. (c)) [,]” without taking any cognizance of the modifying language.  (Id., at p. 1478, 249 Cal.Rptr. 578, italics added.)

Section 12993, subdivision (c), is also the basis of a similar statement in Robinson v. Hewlett–Packard Corp. (1986) 183 Cal.App.3d 1108, 1124, 228 Cal.Rptr. 591.   That case dealt with allegations of racial as contrasted with sexual discrimination.   The court therein held “[t]he Legislature has expressly declared an intent to occupy the field of racial discrimination in employment.”  (Ibid., italics added.)

However, reading section 12993, subdivision (c), in its entirety, it becomes abundantly clear only local laws in the field are preempted by the FEHA.

This conclusion is confirmed by section 12993, subdivision (a), which states:  “The provisions of this part shall be construed liberally for the accomplishment of the purposes thereof.   Nothing contained in this part shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this state relating to discrimination because of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age.”  (Italics added.)

Further, section 12930, also added in 1980, sets forth the functions, powers and duties of the department.   It provides in relevant part at subdivision (f)(2):  “The remedies and procedures of this part shall be independent of any other remedy or procedure that might apply.”  (Italics added.)

No published California case to date has acknowledged or dealt with the existence of this crucial last subdivision, let alone attempted to construe its plain language.   This independent remedy clause is clear and concise and cannot be treated as surplusage, as such an interpretation would contravene the canons of statutory construction.  (Brown v. Superior Court, supra, 37 Cal.3d at p. 484, 208 Cal.Rptr. 724, 691 P.2d 272.)

Analyzing subdivisions (a) and (c) of section 12993 in conjunction with related section 12930, subdivision (f)(2) (see Brown v. Superior Court, supra, at p. 484, 208 Cal.Rptr. 724, 691 P.2d 272), it is unmistakable the FEHA preempts only local anti-discrimination laws, and by its terms it is an independent remedy which shares the field with other applicable state laws and remedies.

In enacting a statute, the Legislature is capable of specifying whether a remedy is to be independent or exclusive.   This is borne out by provisions of the Labor Code which state with certain exceptions, the workers' compensation law is an employee's exclusive remedy for work-related injuries.  (Lab.Code, §§ 3600, 3601;  Williams v. Schwartz (1976) 61 Cal.App.3d 628, 631, 131 Cal.Rptr. 200.)   Had the Legislature intended to make the FEHA an exclusive rather than an independent remedy, it readily could have done so.   Therefore, there is no reason to conclude the Legislature sought to enact the FEHA as an exclusive remedy.⁶

(i) Plain meaning of sections 12930 and 12993 comports with legislative intent.

 Because sections 12930 and 12993 are clear on their face, there is no need to engage in statutory construction.   However, courts will deviate from the plain meaning of a statute when giving a statute its literal effect would thwart the will of the Legislature and would result in an absurdity.   (Brown v. Superior Court, supra, 37 Cal.3d at p. 485, 208 Cal.Rptr. 724, 691 P.2d 272.)

The plain meaning of sections 12930 and 12993, namely, that the FEHA is an independent rather than an exclusive remedy, does not threaten the legislative purpose in the enactment of the FEHA.   Rather, the recognition that the FEHA is an independent remedy upholds the Legislature's stated goal of providing effective remedies to eliminate discriminatory practices.  (§ 12920.)

Also, our Supreme Court has observed an investigation by the department is a lengthy process, making it virtually impossible for an accusation to issue in an employment case before 150 days have passed.   Because of the large volume of cases handled by the department which operates under limited resources, the department has an evident policy of permitting any complainant to sue who wishes to do so.  (Dyna–Med, Inc. v. Fair Employment & Housing Com., supra, 43 Cal.3d at pp. 1401–1402, 241 Cal.Rptr. 67, 743 P.2d 1323;  see also Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at p. 218, fn. 8, 185 Cal.Rptr. 270, 649 P.2d 912 [right-to-sue letters are the rule, not the exception].)

Due to the fundamental public policy of combating unlawful discrimination and the limited resources available for administrative enforcement, a literal reading of sections 12930 and 12993 helps achieve the purpose of the Legislature in adopting the FEHA.

3. Pre-existing right not subsumed within FEHA.

Gender-based employment discrimination was barred in this state long before 1970, when an amendment to the FEPA, the FEHA's predecessor, added sex as a protected category.  (See Historical Notes, 44 West's Ann.Lab.Code (1971 ed.) former §§ 1411, 1412, p. 320.)   Surprisingly ahead of the times, former California Constitution, article XX, section 18, adopted May 7, 1879, provided:  “No person shall, on account of sex, be disqualified from entering upon or pursuing any lawful business, vocation, or profession.”   Two years after the adoption of this constitutional guarantee, it was applied by our Supreme Court in Matter of Maguire (1881) 57 Cal. 604, 604–609, to strike down a San Francisco ordinance prohibiting the employment of females in dance-cellars.  (See Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 8–10, 95 Cal.Rptr. 329, 485 P.2d 529, applying this same section of the Constitution.) ⁷

 Under California law, where a new right is created by statute and a statutory remedy for its infringement is provided, the statutory remedy ordinarily is exclusive.  (Palo Alto–Menlo Park Yellow Cab Co. v. Santa Clara County Transit Dist. (1976) 65 Cal.App.3d 121, 131, 135 Cal.Rptr. 192;  see Orloff v. Los Angeles Turf Club (1947) 30 Cal.2d 110, 112, 180 P.2d 321.)   Contrarily, where a statutory remedy is provided for the enforcement of a pre-existing right, the newer remedy is generally considered only cumulative, and the older remedy may be pursued at the plaintiff's election.  (Flores v. Los Angeles Turf Club (1961) 55 Cal.2d 736, 747, 13 Cal.Rptr. 730, 361 P.2d 921;  3 Witkin, Cal. Procedure (3d. ed. 1985) Actions §§ 7–9, pp. 38–40.)

Because the FEHA is by its terms an independent remedy which supplements other applicable state law, and sex-based employment discrimination was barred in California before this right was included in the FEPA, the statutory remedy is cumulative, and appellants were not required first to exhaust their optional FEHA avenue.⁸

a. Cumulative remedy analysis in Froyd v. Cook (E.D.Cal.1988) 681 F.Supp. 669.

 The only case we have discovered that engages in a thorough analysis of California's FEHA vis-a-vis an action for employment discharge based on gender discrimination is Froyd.

In Froyd, a female brought an action against a former employer, alleging, inter alia, she was constructively discharged in retaliation for reporting sexual harassment by her employer.  (Id., at p. 670.)

The Froyd court addressed whether the California Legislature had provided for an exclusive remedy in the FEHA and thus had displaced a claim for common law wrongful discharge.  (Id., at pp. 673–677.)   Froyd focused on the words of section 12993, subdivisions (a) and (c), and properly concluded the Legislature therein intended to preempt local ordinances.  (Id., at pp. 673–674.)   However, Froyd missed the mark when it found the statute silent on the relationship of the FEHA to common law claims.  (Id., at p. 674.)

It appears to this court that Froyd read the statute too narrowly.   To reiterate, section 12993, subdivision (a) provides that nothing in the FEHA repeals “any other law of this state[.]”  It is axiomatic the law of this state includes the common law as well as the codes.  (Code Civ.Proc., §§ 1895, 1899;  Victory Oil Co. v. Hancock Oil Co. (1954) 125 Cal.App.2d 222, 229, 270 P.2d 604.)

After erroneously concluding the FEHA was silent with respect to the future of common law suits, Froyd by necessity invoked the California doctrine of cumulative remedies.   After Froyd examined the constitutional provision dating back to 1879, and the Maguire case, all set forth ante, it held the statutory remedy was cumulative.  (Froyd v. Cook, supra, 681 F.Supp. at pp. 674–677.)

Although Froyd partially misread section 12993, it otherwise contains a sound analysis of the continued viability of a common law action for gender-based wrongful discharge outside the FEHA.⁹

4. Exhaustion of administrative remedies doctrine.

 Kliger invokes the doctrine of exhaustion of administrative remedies to bar appellants' suit.   Accepting Kliger's position, the trial court ruled:  “Failure of a plaintiff to comply with the filing requirements in a sex discrimination case is—prerequisite to a sex discrimination case.”

In brief, “the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.”  (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292, 109 P.2d 942.)   In Abelleira our Supreme Court held exhaustion of one's administrative remedy “is a jurisdictional prerequisite to resort to the courts.”  (Id., at p. 293, 109 P.2d 942.)

The doctrine has no application to this statutory scheme, as the Legislature enacted the FEHA as an independent remedy.  (§ 12930, subd. (f).)

 In the event a party invokes the FEHA and files a claim with the department, such person must obtain a right-to-sue letter before pursuing a superior court action.  (§ 12965, subd. (b);  Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at pp. 213–214, 185 Cal.Rptr. 270, 649 P.2d 912.)   That requirement is inapplicable here, because appellants did not avail themselves of the administrative remedy in the first instance.

5. Independent causes of action.

 It seems quite obvious that merely because a complaint includes allegations of employment discrimination, such allegations do not bring every cause of action stated in the pleading within the FEHA.   In Salgado v. Atlantic Richfield Co. (9th Cir.1987) 823 F.2d 1322, 1327, a summary judgment was reversed and the district court was directed on remand to determine whether the plaintiff's claims were based solely on age discrimination, or whether the plaintiff had independent common law claims.   Similarly, Hudson v. Moore Business Forms, Inc., supra, 609 F.Supp. at pp. 474–475, held the plaintiff's claims for breach of employment contract and breach of the implied covenant of good faith and fair dealing were preempted by the FEHA only to the extent they were based upon a claim of sex discrimination.

Even assuming the FEHA were the exclusive remedy for gender-based employment discrimination, to the extent appellants here can plead causes of action independent of their sex discrimination claim, such as for tortious conduct involving assault or for breach of contract, those claims would not be barred by the failure first to pursue the administrative remedy.

CONCLUSION

The remedies and procedures under the FEHA are independent of any other applicable remedy or procedure.  (§ 12930, subd. (f)(2).)   In adopting the FEHA, the Legislature intended to occupy the field of regulation of discrimination in employment and housing only with respect to local law (§ 12993, subd. (c)), and it did not repeal extant state law in the categories enumerated in section 12993, subdivision (a).

Because gender-based discrimination in employment was barred by the California Constitution a century before the enactment of the FEHA, the statutory scheme is a cumulative remedy with respect to this specific type of discrimination.   As a result, appellants were not required to pursue and exhaust their administrative remedy prior to bringing a civil action against Kliger, rendering the grant of summary judgment error.

DISPOSITION

The judgment is reversed.   Appellants to recover costs on appeal.

FOOTNOTES

1.   Sexual harassment is a form of sex discrimination.  (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49.)

2.   All subsequent statutory references are to the Government Code, unless otherwise indicated.

3.   According to appellants' opening brief, after summary judgment was granted, they took the motion for leave to amend their complaint off calendar.   It does not appear the trial court had the proposed first amended complaint before it at the time it ruled on the summary judgment motion.   Nonetheless, the grant of summary judgment at that juncture was error.Unless an original complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion, irrespective of whether leave to amend is requested.  (King v. Mortimer (1948) 83 Cal.App.2d 153, 158, 188 P.2d 502;  Code Civ.Proc., § 472c.)   Kliger's motion for summary judgment was in effect one for judgment on the pleadings, based on appellants' failure to exhaust the administrative remedy.   Because appellants' initial complaint did not show on its face it was incapable of properly being amended, dismissal at this stage was premature.

4.   Part 2.8 consists of the FEHA, § 12900 et seq.

5.   Civil Code section 51, the Unruh Civil Rights Act, provides in relevant part:  “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or blindness or other physical disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

6.   Once a court erroneously concludes the FEHA occupies the field of employment discrimination in all respects, an employee inevitably would be required to exhaust the administrative remedy pursuant to the general rule.   As stated ante, the trial court so ruled in the instant case.

7.   The provision has been amended and renumbered and presently appears at California Constitution, article I, section 8, which states:  “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.”

8.   A lack of awareness that gender-based employment discrimination was prohibited in this state prior to the enactment of the FEHA gives rise to the erroneous conclusion that the FEHA is the sole remedy for such discrimination.   See Hudson v. Moore Business Forms, Inc. (N.D.Cal.1985) 609 F.Supp. 467, 474, holding FEHA ban on sex-based employment discrimination was a new right created by statute.  (Hudson was vacated in part, on other grounds, at (9th Cir.) 827 F.2d 450, superseded by 836 F.2d 1156.)Compare Strauss v. A.L. Randall Co. (1983) 144 Cal.App.3d 514, 518, 194 Cal.Rptr. 520, holding California law did not prohibit age discrimination prior to enactment of the FEPA, so that such an aggrieved party was confined to the statutory remedy.

9.   To resist the cumulative remedy doctrine, Kliger relies, inter alia, on a passage in Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 490, 156 Cal.Rptr. 14, 595 P.2d 592, wherein our high court noted “the prohibitions on employment discrimination contained in the FEPA are in no sense declaratory of preexisting common law doctrine but rather include areas and subject matters of legislative innovation, creating new limitations on an employer's right to hire, promote or discharge its employees.”  (Italics added.)However, the point thereby made in the Gay Law Students Assn. case was that the FEPA did not bar all forms of arbitrary discrimination, but was a remedy limited in scope to the categories specifically enumerated in the statute.  (Ibid.)  The passage should not be construed as a blanket assertion that no protections existed against employment discrimination outside the statute.   See e.g. Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216, which “recognized a right independent of the FEPA to seek emotional-distress and punitive damages when overt racial malice is the motive for a discharge.  (Pp. 497–498, and fn. 2, 500, fn. 7 [86 Cal.Rptr. 88, 468 P.2d 216].)”  (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at p. 220, 185 Cal.Rptr. 270, 649 P.2d 912.)

KLEIN, Presiding Justice.

DANIELSON and ARABIAN, JJ., concur.