Spencer v. Dept. Water Resources

Filed 3/7/07 Spencer v. Dept. Water Resources CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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In this action for employment discrimination under the Fair Employment and Housing Act (FEHA), plaintiff Jackie Spencer appeals from the judgment entered in favor of defendant, Department of Water Resources (DWR). She contends the trial court erred in granting DWRs motion for judgment on the pleadings on the ground she had failed to exhaust her administrative and judicial remedies. She also asserts that to the extent the court granted the motion based on her failure to file any opposition to the motion, her attorneys failure to do so was excusable neglect and, therefore, the court abused its discretion in denying her subsequent motion to vacate the judgment. (Code Civ. Proc., 473 (further section references are to the Code of Civil Procedure unless otherwise specified).) We shall affirm the judgment.

FACTS

On December 19, 2002, Spencer filed employment discrimination complaints with the Department of Fair Employment and Housing (DFEH) against DWR and several individuals employed by DWR.^[1] She received right-to-sue letters on January 23, 2003, and one year later she filed a complaint against DWR and the individual employees, alleging they had discriminated against her on the basis of her gender and medical condition. According to Spencer, DWR retaliated against her for exercising her right to take medical leave, i.e., it transferred her to an undesirable and non-comparable position upon her return to work, and falsely accused her of tardiness. She further alleged that DWR promoted a less qualified male candidate, Charles Stucke, to a position Spencer sought; Stucke harassed her by withholding information and assignments because she was female; other DWR managers gave Spencer a negative job reference and negative job evaluations; and as a result of the ongoing harassment, Spencer was forced to resign in May 2002.

On May 20, 2005, DWR filed a motion for judgment on the pleadings based on Spencers failure to exhaust her judicial and/or administrative remedies. DWR asked the trial court to take judicial notice of the fact that Spencer filed an unsuccessful complaint for retaliation, gender discrimination, and disability discrimination with the State Personnel Board (SPB) in case No. 02-3194, in which she made similar allegations to those in her FEHA complaint, and submitted numerous documents in support of her claims.

The record discloses that on January 24, 2002, almost one year prior to her complaint with DFEH, Spencer filed a complaint for discrimination with DWRs Equal Opportunity and Management Investigations Office (EOMIO).

On September 9, 2002, Spencer formally asked SPBs Appeals Division to investigate the matter, contending she had been ignored by DWR and its EOMIO. She filed a Civil Rights Appeal Form with SPB on October 10, 2002, with voluminous supporting documentation, which she claimed demonstrated she had been subjected to unlawful discrimination and retaliation.

On May 13, 2003, SPB determined that the complaint Spencer filed with DWR was still pending review with the Equal Employment Opportunity Review Committee. As for the appeal Spencer filed with SPB, case No. 02-3194, it found that Spencer did not set forth sufficient facts to establish a prima facie case of either illegal discrimination or retaliation. Rather, the evidence submitted by Spencer indicated only that disagreements and personality differences existed between Spencer and her supervisors. According to SPB, Spencer had not alleged sufficient facts to show that DWR took a specific adverse employment action against [her] and that gender was a contributing factor in that adverse employment action. Spencer also fail[ed] to allege sufficient facts in [her] appeal to show that [she] engaged in a legally protected activity and that [she] suffered an adverse employment action as a result. Because Spencer had failed to establish a prima facie case, SPB informed her we are closing our file in this matter.

On May 22, 2003, DWR advised Spencer it had completed its investigation of the formal complaint she filed on January 24, 2002, but its investigation had been truncated due to Spencers failure to cooperate with the EOMIO Chief upon the advice of Spencers attorney. DWR found no substantiation for Spencers claims of discrimination and retaliation, and advised her she could appeal to SPB within 30 days, and had the right to file a claim with DFEH if she chose.

On June 25, 2003, Spencer requested a formal hearing with SPB, and SPB responded on August 20, 2003, that an evidentiary hearing would be scheduled with an Administrative Law Judge and the matter was designated as case No. 02-3194E. A hearing was set for January 13, 2004, but Spencer withdrew her appeal on January 12 and then filed her FEHA complaint for damages 11 days later.

In its motion for judgment on the pleadings, DWR argued that Spencers FEHA complaint was deficient on its face because she failed to allege she exhausted her administrative remedies before SPB. Having chosen to invoke SPBs administrative jurisdiction and having received an adverse decision, Spencer could not simply abandon her SPB appeal and pursue a FEHA action. Rather, she was required to exhaust her administrative remedies by appealing SPBs decision and, if its decision remained unfavorable to her, she was required to exhaust her judicial remedies by filing a petition for writ of mandate challenging SPBs decision.

Spencer submitted her opposition to DWRs motion and a request to continue via fax on July 7, 2005, which is the day the trial court issued its tentative ruling.

The trial courts tentative ruling states: The motion of [DWR] for judgment on the pleadings is unopposed, which is taken as a concession to its merits, and it is granted. [Spencer] has failed to allege she exhausted her administrative remedies since she failed to seek judicial review of the State Personnel Board decision. The courts ruling became final on July 8, 2005, when Spencer failed to request oral argument within the requisite timeframe. (Cal. Rules of Court, rule 3.1308(a)(1).) The court entered judgment for DWR on July 20, 2005.

On August 24, 2005, Spencer filed a motion to vacate the judgment under section 473, alleging that she was entitled to either mandatory or discretionary relief based upon her attorneys failure to file a timely opposition to the motion for judgment on the pleadings.

The trial court denied the motion to vacate, observing that mandatory relief under section 473, subdivision (b) is not available where a default judgment is not involved, and that as for discretionary relief based on mistake, inadvertence or excusable neglect, there was no mistake or inadvertence and the attorneys neglect was not excusable.

DISCUSSION

I

Spencer contends the trial court erred in granting DWRs motion for judgment on the pleadings on the ground she failed to exhaust her administrative or judicial remedies.

A defendant may obtain judgment on the pleadings if either of the following conditions exist: [] (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint. [] (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant. ( 438, subd. (c)(1)(B).)

Because a motion for judgment on the pleadings performs the same function as a general demurrer, it attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) The determination of the trial court is not binding on us; we must render our independent judgment on whether a cause of action has been stated. (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064-1065.) We accept as true, and liberally construe, the factual allegations of the complaint, and we may consider evidence outside the pleadings that the trial court considered without objection. (Id. at p. 1065.)

DWR moved for judgment on the pleadings on the ground Spencers action was barred by her failure to exhaust her administrative and judicial remedies prior to bringing her FEHA action. It noted that the California Code of Regulations states: Discrimination in violation of state or federal law shall be prohibited in State employment practices. All issues relating to alleged violation of Federal or State anti-discrimination laws shall be resolved using the appeal process provided in Sections 54 to 54.2 inclusive. (Cal. Code Regs., tit. 2, 547 (hereafter regulation 547); further references to regulations are to sections of title 2 of the California Code of Regulations.)

Regulation 54 states: Any person who believes that he or she has been discriminated against in state employment . . . shall have the opportunity to file a complaint with the [SPB]. . . . Regulation 54.2 provides that the appointing power shall provide for a timely and thorough review of the discrimination complaint. Furthermore, [a] complaint against an action, decision, policy or condition which is within the authority of the appointing power to resolve shall be first considered by the appointing power before referral to the [SPB]. A complaint of discrimination which cannot be resolved by the appointing power . . . shall be filed with the [SPB] as an appeal. The executive officer may first attempt to resolve such a complaint informally, or refer it to the [SPB] for hearing. . . . (Reg. 547.1.)

Unless a proper application for rehearing is made pursuant to Government Code section 19586, every [SPB] decision shall become final 30 days after service by [SPB] of a copy of such decision upon the parties to the proceeding in which the decision is rendered. (Reg. 51.6.) Thereafter, the employee may obtain judicial review of the decision by filing a petition for writ of mandate. (Gov. Code, 19588.)^[2]

According to DWR, Spencer pursued her SPB civil service remedies and received an adverse decision from SPB stating that she failed to set forth facts establishing a prima facie case of discrimination or retaliation. She challenged this decision but then abandoned her appeal. This abandonment was fatal to her FEHA action because having chosen the SPB forum to pursue her complaint of discrimination, she had to exhaust her administrative remedies within that forum and then, if the decision remained adverse, exhaust her judicial remedies by having the SPB decision set aside via a petition for writ of mandate. (Page v. Los AngelesCountyProbation Dept. (2004) 123 Cal.App.4th 1135, 1142-1144 (hereafter Page).) Because Spencer failed to do so, DWR was entitled to judgment on the pleadings.

Spencer contends that she did not have to exhaust her civil service remedies before pursuing her FEHA action; rather, she only needed to obtain a right-to-sue letter from DFEH, which she did, after which she could pursue the FEHA action as well as her civil service remedies. Spencer is only partially correct.

An employee need not exhaust internal grievance procedures in addition to obtaining a right-to-sue letter from DFEH before pursuing a FEHA action. The employee has the option of pursuing either his or her internal administrative remedy or FEHA remedy. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1090 (hereafter Schifando); Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 720-721 (hereafter Williams); Ruiz v. Department of Corrections (2000) 77 Cal.App.4th 891, 897, 899 (hereafter Ruiz).) Requiring public employees to pursue both internal remedies and remedies under FEHA would frustrate the Legislatures intent . . . to give public employees the same tools in the battle against employment discrimination that are available to private employees. . . . [S]tate employees should be able to choose between pursuing their claims under the FEHA or under other statutes that cover similar ground, but do not afford similar procedures, remedies and protections. (Schifando, supra, 31 Cal.4th at pp. 1085-1086, quoting State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 431.) Therefore, if a public employee chooses to pursue a FEHA action, he or she need only exhaust the administrative remedies of his or her chosen forum, which means obtaining a right-to-sue letter from DFEH. (Schifando, supra, 31 Cal.4th at p. 1092; Williams, supra, 121 Cal.App.4th at p. 721.)

However, if a public employee opts to pursue civil service remedies or internal grievance procedures, as Spencer did in the present case, the employee must exhaust the administrative remedies of the chosen forum first before pursuing a FEHA action. (Page, supra, 123 Cal.App.4th at pp. 1142-1143.) Furthermore, when . . . a public employee pursues administrative civil service remedies, receives an adverse finding, and fails to have the finding set aside through judicial review procedures, the adverse finding is binding on discrimination claims under the FEHA. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 76; see also Ruiz, supra, 77 Cal.App.4th at p. 899; Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 243-244 [plaintiff must have adverse decision from administrative agency set aside via a petition for writ of mandate to avoid collateral estoppel effect in subsequent litigation].)

Accordingly, once Spencer chose to pursue her civil service remedies and obtained an initial decision from SPB that she had not suffered any discrimination or been retaliated against, she could not simply abandon the matter and pursue the FEHA action without first exhausting her civil service administrative and judicial remedies.

Spencer argues she is entitled to pursue both her civil service and FEHA remedies simultaneously because Ruiz, supra, 77 Cal.App.4th 891 holds that state employees may pursue their claims of employment discrimination with either [SPB] or the DFEH or both. (Id. at p. 900, italics added.)

However, Ruiz observed that an employee would tread into a procedural minefield if a FEHA claim was filed with DFEH at the same time civil service remedies were pursued. (Ruiz, supra, 77 Cal.App.4th at p. 899; accord, Schifando, supra, 31 Cal.4th at pp. 1088-1089.) This is one of the reasons Schifando held that [t]he 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, rather than requiring them to pursue their employers internal grievance procedures first. (31 Cal.4th at p. 1089.) Schifando recognize[d] the existence of potential procedural issues that might arise in the situation where an employee chooses to pursue both avenues of redress, but declined to address and resolve those issues because the employee in question chose to pursue only his FEHA remedies. (Id. at p. 1092.)

The procedural issues foreseen by Schifando were presented in Page, supra, 123 Cal.App.4th 1135, in which the employee proceeded headlong into the procedural minefield to which Schifando referred. (Id. at p. 1142.) There, the employee filed an internal grievance with the Los Angeles County Civil Service Commission (Commission); hearings were held, and a hearing officer issued a lengthy written statement of decision finding that the employer had not violated the Americans with Disabilities Act. (Id. at pp. 1138-1139.) The employee and employer both objected to the recommended findings, and the Commission set, discussed, and/or continued its hearings several times. (Id. at pp. 1139-1140.) While the administrative hearing was ongoing, the employee filed a discrimination complaint with DFEH, received a right-to-sue letter and filed a FEHA lawsuit against the employer. (Id. at p. 1140.) The employer demurred on the ground the employee failed to exhaust her administrative remedy before the Commission and failed to challenge the hearing officers findings via a petition for writ of administrative mandamus. (Id. at pp. 1140-1141.)

According to Page, if an employee chooses to pursue claims of discrimination in a civil service forum and receives an adverse decision, then the employee must continue to exhaust the chosen forums administrative remedies -- having elected to try the employment dispute in the public agencys internal hearing process, the employee must follow the forums administrative review procedure. If the ultimate administrative decision remains unfavorable to the employee, then he or she must petition for a writ of mandate to have the decision set aside to prevent the decision from having a collateral estoppel effect in the employees FEHA litigation. (Page, supra, 123 Cal.App.4th at pp. 1142-1143.)

[This] ensures that employees who choose to utilize internal procedures are not given a second bite of the procedural apple. [Citation.] (Page, supra, 123 Cal.App.4th at p. 1142.) An employee is not free to ignore adverse administrative decisions, abandon the administrative review process, and proceed to a FEHA action for damages. (Ibid.)

Because the employee in Page chose to pursue the civil service commission process, proceeded through hearings, and then obtained a comprehensive adverse decision from a hearing officer, she was not free to ignore and abandon the administrative process and pursue a FEHA complaint for damages. Rather, she had to wait for the Commissions final decision, and if it was adverse, file a petition for writ of mandate. (Page, supra, 123 Cal.App.4th at p. 1142.) Until that time, her FEHA complaint was premature. (Ibid.)

Spencer disagrees that Page precludes her FEHA action. She notes Page stated: Though a public employee may chose to bypass the administrative process, if she pursues it through evidentiary hearings to a proposed decision, then she has the burden to exhaust administrative and judicial remedies notwithstanding the risk that a FEHA claim may no longer be viable. (Page, supra, 123 Cal.App.4th at p. 1144, italics added.) Thus, according to Spencer, Page does not apply unless the employee suffers an adverse decision after an evidentiary hearing in a quasi-judicial proceeding, which Spencer did not receive. She obtained only a documentary review by SPB and an internal investigation of her formal complaint by DWR, with both agencies finding no evidence of discrimination or retaliation. Spencer appealed the matter, and an evidentiary hearing was scheduled before an administrative law judge; but she withdrew her appeal prior to the hearing date. Therefore, Spencer claims, she did not need to exhaust her internal administrative remedies since she did not receive a proposed adverse decision after an evidentiary hearing.

We do not interpret Page as being as limited as Spencer suggests. The quoted language simply referred to the specific factual situation therein, and was not a concrete limitation on its determination that once an employee chooses a particular forum and receives an adverse administrative decision, the employee must exhaust his or her administrative and judicial remedies before pursuing a FEHA action.

Here, Spencer initiated her administrative action by filing a formal complaint with DWR in January 2002, before she filed a discrimination complaint with DFEH in December 2002. DWR investigated the allegations Spencer made in her formal complaint and interviewed certain witnesses, but its review had been hampered by Spencers lack of cooperation, apparently upon the advice of her attorney. DWR rejected each of her allegations and provided her with specific written findings in support of its decision. Spencer appealed this decision to SPB and then abandoned her appeal before an evidentiary hearing was held.

However, before DWR issued its decision, Spencer wrote a letter asking SPB to investigate the matter, contending DWR was taking too long to review her complaint. She also filed a formal Civil Rights Appeal Form concerning her allegations of discrimination and retaliation. SPB asked Spencer to submit evidence supporting her claims, and she complied by providing approximately 200 pages of documentary evidence she believed established DWRs discriminatory and retaliatory conduct. After reviewing the materials [Spencer] submitted, SPB found that she presented insufficient evidence of discrimination or retaliation, and that her appeal did not set forth sufficient facts to establish a prima facie case of either illegal discrimination or retaliation.

Thus, we are not dealing with a situation where the sole relevant procedural facts are that DWR denied Spencers claim; that she appealed this decision with SPB; that a hearing was set; and that she abandoned her appeal before obtaining an adverse decision by SPB. Rather, Spencer muddied the procedural waters when she filed a complaint with SPB before receiving DWRs decision, and SPB -- which is a statewide administrative agency endowed by the Constitution with quasi-judicial powers (Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 52) -- conducted an evidentiary review of the matter. The review resulted in a written decision with specific findings rejecting her claims. Having received an adverse decision from SPB, she could not ignore its decision and fail to pursue and exhaust her administrative and judicial remedies.

Under the circumstances, the trial court properly granted the motion for judgment on the pleadings on the ground that Spencer failed to exhaust her administrative and judicial remedies.

II

Spencers remaining argument is presented under the heading: To The Extent DWRs Motion for Judgment on the Pleadings Was Granted Because of Lack of Opposition, The Judgment Should Have Been Set Aside On Plaintiffs Motion Pursuant to Cal. Civ. Proc. Code 473. She contends she was either entitled to mandatory relief based on her attorneys failure to oppose the motion or to discretionary relief based on excusable neglect. ( 473, subd. (b).)^[3]

Because Spencer has failed to demonstrate that the trial court erred in granting DWRs motion for judgment on the pleadings on the ground that Spencer failed to exhaust her administrative and judicial remedies, it is irrelevant whether the courts alternate ground for granting DWRs motion was sound. Hence, we need not address whether the court erred in granting judgment on the pleadings based on Spencers lack of opposition, or whether it erred in denying her motion to vacate the judgment on the grounds her failure to oppose DWRs motion was the result of conduct warranting relief under section 473.

DISPOSITION

The judgment is affirmed.

SCOTLAND, P.J.

We concur:

RAYE , J.

ROBIE , J

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^[1] The individual employees are not parties to this appeal.

^[2] Government Code section 19588 states: The right to petition a court for writ of mandate, or to bring or maintain any action or proceeding based on or related to any civil service law of this State or the administration thereof shall not be affected by the failure to apply for rehearing by filing written petition therefor with the board. Accordingly, the employee can seek reconsideration of SPBs decision via a petition for rehearing or seek judicial review of the decision via a petition for writ of mandate in superior court.

^[3] Section 473 states in pertinent part: (b) The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorneys mistake, inadvertence, surprise, or neglect. . . .