Mokhtari-Sharghi v. Trustees of the Cal. State University and Colleges

Filed 3/21/06 Mokhtari-Sharghi v. Trustees of the Cal. State University and Colleges CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Plaintiff Shahriar Mokhtari-Sharghi (Mokhtari) appeals a summary judgment granted in favor of defendant Trustees of the California State University and Colleges (Trustees) on his employment discrimination lawsuit under the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et. seq.) We conclude that the trial court properly granted summary judgment because Mokhtari filed his action without exhausting his administrative remedies. We affirm.

FACTS

California State University Channel Islands (University) hired Mokhtari for a temporary position as a mathematics lecturer. He applied for a "tenure-track" position in the mathematics department, but he was not selected. He filed a grievance with the University claiming he was rejected because of "discrimination based on national origin and religion." Mokhtari is from Iran and is a "Muslim."

At the "Level I" grievance hearing, Mokhtari was asked, "During or outside the hiring process, were you asked about your religious or ethnic background?" He replied, "No, I don't think so." His representative claimed that Mokhtari's name "identifies" his ethnicity. Mokhtari said his application documents did not identify his religion.

The University denied Mokhtari's grievance. In its decision, written by the Associate Vice President for Faculty Affairs, it found, among other things, that: 1) Mokhtari "provided no evidence of a causal link between [his] national origin and religion and the decision not to hire him," 2) "[o]ne offer was extended for [the] Mathematics positions . . . to a minority candidate (Asian ethnicity), [but] the candidate withdrew; no one was hired for any of the Mathematics positions," 3) "both minorities and non-minorities were hired for other tenure-track positions," and 4) "the University has other employees . . . that are of Middle Eastern background including . . . an Associate Vice President."

Pursuant to the collective bargaining agreement, Mokhtari filed an appeal from the "Level I" decision to obtain a "Level II" grievance hearing. The University, in a decision written by its Employee Relations Manager, denied the grievance and adopted the findings made in the "Level I" decision. It found Mokhtari's "non-selection was not due to discriminatory treatment."

Mokhtari filed an appeal for a "Level III" arbitration hearing. Before the hearing was scheduled, he filed a lawsuit in superior court against the Trustees alleging he was denied the position because of national origin and religious discrimination. He filed this action after requesting and receiving an "immediate right-to-sue letter" from the California Department of Fair Employment and Housing (DFEH).

The Trustees filed a motion for summary judgment claiming Mokhtari had failed to exhaust his administrative remedies because he filed the action while his grievance was still pending. The Trustees attached Mokhtari's deposition where he admitted he had not withdrawn his request for an arbitration hearing and that he expected it would take place at a future date. The court granted the motion and ruled that Mokhtari had not exhausted his administrative remedies.

DISCUSSION

I

Exhausting Administrative Remedies

Mokhtari contends the court erred by granting summary judgment. We disagree.

"[G]overnment employees who believe they have suffered employment discrimination may choose to pursue remedies provided by either the Fair Employment and Housing Act [FEHA] or internal grievance procedures . . . ." (Page v. Los Angeles County Probation Dept. (2005) 123 Cal.App.4th 1135, 1141.) If they select the grievance procedure, "they must exhaust 'the chosen administrative forum's procedural requirements" before filing a discrimination action. (Id. at p. 1142.) "'Exhaustion of administrative remedies is "a jurisdictional prerequisite to resort to the courts." . . .' [Citation.]" (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321.)

In Page, a former public employee initiated a grievance proceeding claiming her employer engaged in disability discrimination. Before the administrative agency reached a final decision on her grievance, she filed a discrimination lawsuit. She argued that because she had a right-to-sue letter from the DFEH, she could initiate litigation before completing the grievance process. The Court of Appeal disagreed and ruled her FEHA lawsuit was "premature." (Page v. Los Angeles County Probation Dept., supra, 123 Cal.App.4th at p. 1142.) It said "Page did not exhaust her administrative remedies by awaiting the Commission's final decision before filing suit." (Id. at p. 1143.)

Here, as in Page, Mokhtari filed his discrimination lawsuit before the grievance procedure was complete. He obtained decisions on the first two stages of his grievance and filed an appeal to the third stage. But he did not exhaust his administrative remedies. "Before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings. [Citations.]" (Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520, italics added.) "It is well settled that '[j]udicial intervention is premature until the administrative agency has rendered a final decision on the merits.'" (Ibid.)

Mokhtari claims that when he filed suit there was no final administrative decision or factual findings on his grievance, therefore he was entitled to file his action. But the procedural facts here are similar to those in Page, where the court did not permit the employee to litigate the same issue in both a FEHA lawsuit and a non-FEHA forum simultaneously. Moreover, the decisions in Mokhtari's "Level I" and "Level II" grievances contained factual findings directly relating to his claims of discrimination. Had he completed the "Level III" appeal, he would have received a final administrative decision on his grievance.

Public employees may elect between initiating FEHA or internal grievance remedies. But where they elect to try their employment disputes in the public agency's internal hearing process, they must follow the forum's administrative review procedure. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1088.) "[E]mployees who choose to utilize internal procedures are not given a second 'bite of the procedural apple.'" (Id. at pp. 1090-1091.) They may not simultaneously litigate the same discrimination issue in both a FEHA court case and an internal grievance process as that would undermine the principles of "judicial economy" and "create a procedural labyrinth." (Id. at p. 1091.)

After litigating his case in the grievance proceedings, Mokhtari may not prematurely "ignore and abandon the administrative process and proceed to a FEHA action for damages." (Page v. Los Angeles County Probation Dept., supra, 123 Cal.App.4th at p. 1142; Edgren v. Regents of University of California, supra, 158 Cal.App.3d at p. 520.) There was no error.

The judgment is affirmed. Costs are awarded to respondent.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Frederick H. Bysshe, Judge

Superior Court County of Ventura

______________________________

Siegel & Yee and Dan Siegel for Plaintiff and Appellant.

Dennis J. Walsh and Armineh Megrabyan for Defendant and Respondent.

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