Tatum v. Berz

Filed 8/14/07 Tatum v. Berz CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Ben T. Kayashima, Judge. (Retired judge of the San Bernardino Super. Ct., sitting under assignment by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Reversed with directions.

Law Offices of Gloria Dredd Haney, Gloria Dredd Haney; Law Offices of Harry E. Hutchison, Jr., and Harry Earle Hutchison, Jr., for Plaintiff and Appellant.

Liebert Cassidy Whitmore, Mary L. Dowell and Pilar Morin for Defendants and Respondents.

Dale C. Tatum, Ph.D., plaintiff and appellant (hereafter plaintiff), appeals from the summary judgment entered against him and in favor of defendants and respondents, Chaffey Community College District, Donald Berz, and Paul Parnell (hereafter referred to collectively as defendants, or individually by name), on plaintiffs complaint for damages based on wrongful termination of employment and employment discrimination. In their motion for summary judgment, defendants asserted that plaintiffs claims all were barred because he (1) had failed to pursue the appropriate judicial remedies, and (2) had failed to present a written claim as required by the Tort Claims Act, Government Code section 810 et seq.

The length of the parties respective briefs notwithstanding, the pertinent facts are few and undisputed. According to the allegations of his fifth amended complaint, filed January 27, 2005, plaintiff, who is an American of African descent, was hired as an instructor at Chaffey Community College in 1991. Defendant Berz was at the times relevant to plaintiffs complaint the executive vice-president of defendant District. Defendant Parnell was the dean of social and behavioral sciences at defendant District at all relevant times. Plaintiff alleged that defendant Berz and defendant Parnell, acting outside the scope of their employment, discriminated and retaliated against plaintiff because, among other things, plaintiff complained to government agencies and elected officials about the pervasive environment of race discrimination at Chaffey Community College.^[1] Plaintiff further alleged that defendant Berz and defendant Parnell solicited and conspired with others at defendant District to harm plaintiff by, among other things, giving plaintiff an unsatisfactory performance evaluation in 2000, and encouraging defendant Parnells predecessor, the acting dean of social and behavioral sciences, to harass plaintiff and cause friction between plaintiff and another instructor, all in order to establish a basis to terminate plaintiffs employment. Defendant District terminated plaintiffs employment on October 8, 2003.

Plaintiff alleged six purported causes of action, or as he denominated them, claims for relief, in his fifth amended complaint, the first, against all defendants, entitled Tort for Violation of Public Policy, the second, against defendant District, entitled Violation of Labor Code section 1102.5, the third, against defendant District, entitled Race Discrimination in Violation of the California Fair Employment and Housing Act, the fourth, against all defendants, entitled Retaliation in Violation of the California Fair Employment and Housing Act, the fifth, against all defendants, for Harassment in Violation of the California Fair Employment and Housing Act, and the sixth, against defendant District, entitled Wrongful Termination in Violation of the California Fair Employment and Housing Act.

After answering the fifth amended complaint, defendants moved for summary judgment on all theories of recovery alleged in that pleading claiming that plaintiff was barred from any recovery because he had not exhausted his judicial remedies. In particular, defendants asserted that plaintiff had requested a hearing before an administrative law judge to challenge the termination of his employment. A few days before the scheduled hearing, plaintiff notified the hearing officer and defendants that plaintiff was waiving his right to a hearing and would not participate in that proceeding. Defendants attended the hearing and the hearing officer later issued a decision. Defendants asserted that plaintiff could not pursue recovery for wrongful termination^[2] because after he abandoned his internal administrative appeal, plaintiff did not seek judicial review of the decision issued as a result of that hearing. Defendants also asserted that plaintiff had not complied with the requirements of the Tort Claims Act because he did not present the requisite claim for wrongful termination to defendant District. After filing their summary judgment motion, defendants apparently realized they had not alleged plaintiffs failure to exhaust his judicial remedies as an affirmative defense in their answer to plaintiffs fifth amended complaint. Defendants moved to amend their answer, a motion the trial court granted over plaintiffs objection and opposition. Plaintiff then filed an ex parte motion to continue the hearing on defendants summary judgment motion, an application the trial court denied. Plaintiff did not file opposition to defendants summary judgment motion and did not appear at the hearing on that motion. Instead, plaintiffs attorney advised the trial court by telephone on the morning of the hearing that due to her trial schedule she could not appear at the hearing and had not had time to file opposition to defendants summary judgment motion. Plaintiffs attorney again requested a continuance of the hearing, a request the trial court again denied.

The trial court granted summary judgment in favor of defendants after finding that plaintiffs failure to exhaust his judicial remedies by seeking a writ of mandamus to challenge the decision of the administrative law judge barred each of plaintiffs claims. The trial court also found that defendant Berz and defendant Parnell were not plaintiffs employers and granted summary adjudication in their favor on the first cause of action for termination of employment in violation of public policy.^[3] The trial court also found that plaintiff failed to file the requisite claim under the Tort Claims Act, and therefore granted summary adjudication in favor of defendant District on the first, second, and sixth causes of action.

Plaintiff challenged the summary judgment in a motion under Code of Civil Procedure section 473, subdivision (b), seeking relief based on mistake, inadvertence, surprise, or excusable neglect, and also in a motion for new trial, both of which the trial court denied. This appeal ensued.

We agree with plaintiffs claim that there was no administrative decision from which to seek judicial review by way of a petition for writ of administrative mandamus and therefore the trial court erred in granting summary judgment in favor of defendants. We also agree with plaintiffs claim that the trial court erred in granting summary adjudication in favor of defendant District based on plaintiffs alleged failure to present a tort claim to defendant District. Therefore we will reverse the summary judgment as to all defendants and remand this matter to the trial court with directions to vacate the order granting summary adjudication on the first, second and sixth causes of action. In doing so, we are compelled to note that plaintiffs counsel should not view this reversal as a vindication of her views or actions. Under different circumstances, her failure to file opposition to the summary judgment motion might well have been fatal to her clients cause. Neither the press of other business nor counsels view that the summary judgment motion was not well taken, the reasons offered in the trial court to explain her failure to respond, are justifications.

DISCUSSION

Although plaintiff raises various claims in this appeal, we will only address what in our view are the dispositive issues whether plaintiff was required to seek judicial review of the decision issued by the administrative law judge before filing his cause of action for termination of employment, and whether plaintiff was required to present a tort claim to defendant District for the injury caused by termination of his employment in order to pursue recovery on the first, second, and sixth causes of action.

1.

JUDICIAL REVIEW ISSUE

In their motion for summary judgment defendants asserted that plaintiffs recovery was barred on each cause of action because he did not seek judicial review of the administrative law judges decision. As set out above, before the hearing, plaintiff notified the administrative law judge (ALJ) that he would not participate and that he was waiving his right to such a hearing. As a result, the ALJ issued a document entitled DECISION that recounts the procedural history of the matter, and states in pertinent part that plaintiff (identified in the decision as respondent) knowingly and voluntarily waived his right to a hearing before the Office of Administrative Hearings. [Plaintiffs] waiver is deemed as an effective withdrawal of his request for hearing in this matter. [Plaintiffs] failure to appear at the properly noticed hearing on September 13, 2004 is further deemed an abandonment of his right to an administrative hearing under Education Code sections 87673, 87678, 87679, and 87680. The decision also dismisses plaintiffs case before the Office of Administrative Hearings, and states, The August 21, 2003 decision by the Governing Board of the District dismissing [plaintiff] from employment shall remain undisturbed by this decision of the Office of Administrative Hearings.

Although plaintiff did not file opposition to defendants summary judgment motion, he has not waived the issue on appeal. First, plaintiff challenged defendants claim in his opposition to defendants motion to amend their answer to assert exhaustion of judicial remedies as an affirmative defense. Plaintiff raises that same challenge on appeal. In addition, on appeal we independently review a motion for summary judgment to determine whether the facts presented in the trial court support the ruling (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860), although obviously we are bound by the factual showing made in the trial court. Consequently, we must address the issue either in the context of the trial courts ruling on defendants motion to amend their answer, or in the context of the trial courts order granting summary judgment in favor of defendants. We choose the latter because it renders the former issue moot.

We begin our discussion with the settled legal principle that adverse findings made in a quasi-judicial proceeding are binding in a later civil action unless those findings are challenged in a mandate proceeding filed in superior court. (Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 484.)^[4] The same principle applies to a claim of discrimination under the California Fair Employment and Housing Act (FEHA) when a public employee pursues administrative civil service remedies, receives an adverse finding, and fails to have the finding set aside through judicial review proceedings, the adverse finding is binding on discrimination claims under the FEHA. (Johnson v. City of Loma Linda, supra, 24 Cal.4th at p. 76.)

The ALJ here did not make any factual findings adverse to plaintiff because there was no evidentiary hearing at which evidence to support such findings was presented.^[5] Instead, the ALJ found only that plaintiff had waived his right to a hearing, and therefore the governing boards decision to terminate plaintiffs employment was undisturbed. Despite its title, the ALJs decision was in effect an order dismissing plaintiffs case then pending before the Office of Administrative Hearings. Because there was no evidentiary hearing, and hence the ALJ did not make factual findings, there was nothing for a court to review in an administrative mandamus proceeding. In other words, the findings of the ALJ are not binding on plaintiff in his subsequent civil action or on his FEHA claim because the ALJ did not make factual findings on the merits. The ALJ simply dismissed plaintiffs request for a hearing, a dismissal that in turn enabled plaintiff to file a discrimination claim with the DFEH, and ultimately to obtain a right to sue letter. Defendants do not contend that plaintiff was required to seek judicial review of the order dismissing plaintiffs request for a hearing.

Plaintiff also was not required to pursue the internal remedy, i.e., a hearing through the Office of Administrative Hearings, as a prerequisite to filing a civil action against defendants for violation of the FEHA. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1092.) Although plaintiff initially requested a hearing, he changed his mind, and in doing so effectively asked that his case be dismissed. Defendants contrary view notwithstanding, an employee is not precluded from withdrawing his or her request for a hearing. Nor are we offended, as defendants apparently are, by the fact that plaintiff pursued the hearing request for nearly a year, and conducted discovery under the auspices of that proceeding.^[6] Plaintiff would have been entitled to conduct discovery if he had opted initially to file a civil suit against defendants in superior court seeking redress for discrimination under the FEHA. Consequently, the fact that plaintiff conducted discovery in one forum and then dismissed that proceeding to pursue his claim and obtain a hearing in another forum is not necessarily or obviously improper.

In short and simply put, the ALJ did not conduct a quasi-judicial hearing and make adverse factual findings that were subject to judicial review in a petition for writ of mandate or binding on plaintiff in the absence of such review. Therefore, the trial court erred in granting summary judgment in favor of defendants on plaintiffs fifth amended complaint. The remaining issue we must address is whether the trial court properly granted summary adjudication on plaintiffs other causes of action because plaintiff did not submit a tort claim seeking damages for injuries he allegedly suffered as a result of his employment being terminated.

2.

TORT CLAIM ISSUE

Defendant District, as noted above, also asserted in its alternative motion for summary adjudication of facts that plaintiffs first, second, and sixth causes of action were barred because plaintiff did not file a claim for wrongful termination of employment as required by the Tort Claims Act, Government Code section 810 et seq.^[7] The trial court agreed and granted summary adjudication in favor of defendant District on those causes of action. Plaintiff contends that he was not required to file a claim on any of those causes of action because they all are based on violations of the FEHA, and a tort claim is not required in order to sue for a violation of the FEHA. Plaintiff is correct on the law but incorrect in its application.

[A]ctions seeking redress for employment discrimination pursuant to the [FEHA] are not subject to the claim-presentation requirements of the Tort Claims Act (Gov. Code, 810 et seq.). [Citation.] (Garcia v. Los Angeles Unified School Dist. (1985) 173 Cal.App.3d 701, 711, quoting Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 863.) The rationale for the exemption is that the procedural requirements of the FEHA, which include filing a complaint, an investigation of the claim, and serving the complaint on the employer, serve a similar function to that served by presentation of a claim as required by the Tort Claims Act. (Snipes v. City of Bakersfield, supra, at p. 869.) The dispositive issue, and therefore the one we must resolve, is whether the causes of action in question seek recovery for wrongful termination based on violations of the FEHA. The sixth cause of action clearly states such a claim. Therefore, the trial court incorrectly granted summary adjudication in favor of defendants on that cause of action.

The first cause of action is entitled Tort for Violation of Public Policy and seeks damages, both compensatory and punitive, for injuries plaintiff allegedly suffered as a result of alleged harassment and discrimination plaintiff claims occurred while he was still employed by defendant District. In other words, the cause of action does not seek damages for injuries plaintiff suffered as a result of termination of his employment. Plaintiff filed a tort claim with respect to those injuries he allegedly suffered while employed by defendant District. Consequently, the trial court erred in granting summary adjudication on that cause of action. To the extent plaintiff purports to seek damages in the first cause of action for injuries that resulted from termination of his employment, those damages are barred because he did not file a claim with defendant District based on those injuries and the cause of action is not based on alleged violations of the FEHA.

The second cause of action, entitled Violation of Labor Code section 1102.5, names only the District as a defendant, and seeks injunctive relief, apparently to prohibit defendant District from violating the Labor Code provision identified in the title. The claim presentation requirement applies only to claims for money or damages based on personal injury. (Gov. Code, 945.4.) Because the second cause of action does not seek damages for personal injury suffered by plaintiff, the claim presentation requirement does not apply. But even if we were to construe the cause of action as seeking such damages, plaintiffs claim is not entirely barred as a result of his failure to present a claim for injury resulting from termination of his employment. Like the first cause of action, the allegations of the second cause of action can be construed to be limited to the period while plaintiff was employed. Plaintiff presented a claim for injuries that occurred during that time period. For these reasons we conclude that the trial court erred in granting summary adjudication on plaintiffs second cause of action.

Our conclusion that the trial court erred in granting defendants summary judgment and summary adjudication motions renders plaintiffs remaining claims of error moot. Consequently, we will not address those claims and instead will reverse the summary judgment and remand the matter to the trial court.

DISPOSITION

The summary judgment in favor of defendants is reversed. The matter is remanded to the trial court with directions to vacate the order granting summary adjudication in favor of defendant District on the first and second causes of action and in favor of all defendants on the sixth cause of action. The trial court is further directed to enter a new order denying defendants summary judgment motion and granting summary adjudication on the first cause of action as to defendants Berz and Parnell only. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Hollenhorst

J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1]Plaintiffs pleading is replete with detailed examples of the purported acts of discrimination and harassment committed by defendants Berz and Parnell. Those details are not pertinent to the issues we must resolve in this appeal, and therefore we will not recount them.

^[2]In 2001, while still employed at Chaffey Community College, plaintiff filed an action against defendants for discrimination. Plaintiff amended that pleading several times; amendments that culminated with the fifth amended complaint, which plaintiff filed after defendant District terminated his employment in 2003.

^[3]Plaintiff does not challenge this aspect of the trial courts ruling in his appeal.

^[4]Defendants do not claim that plaintiff failed to exhaust his internal administrative remedies, which is a jurisdictional prerequisite to resort to the courts. [Citation.] (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70.) Instead, defendants contend that plaintiff failed to exhaust his judicial remedies, recourse that is necessary to avoid giving binding effect to the administrative agencys decision, because that decision has achieved finality due to the aggrieved partys failure to pursue the exclusive judicial remedy for reviewing administrative action. [Citation.] (Ibid., italics omitted.)

^[5]The cases defendants rely on both in the trial court and in this appeal are all distinguishable because a hearing took place in each of those cases. Thus, in Johnson v. City of Loma Linda, the plaintiff filed a grievance after the city terminated his employment and the citys personnel board reviewed and rejected his claim. (Johnson v. City of Loma Linda, supra, 24 Cal.4th at p. 66.) In Page v. Los Angeles County Probation Dept. (2004) 123 Cal.App.4th 1135, a hearing took place and the hearing officer issued a statement of decision but while awaiting the final decision of the civil service commission, the plaintiff filed a complaint with the Department of Fair Employment and Housing (DFEH), obtained a right to sue letter, and brought a civil action under the FEHA against her employer. (Id. at pp. 1138-1140.)

^[6]According to defendants, this case represents the type of dress rehearsal that the exhaustion of judicial remedies requirement seeks to prevent. Schifando v. City of Los Angeles, which defendants cite to support this assertion, does not prohibit dress rehearsals, and, in fact, does not include the quoted phrase. What exhaustion of judicial remedies seeks to ensure is that an employee who opts to pursue an internal grievance procedure is not given a second bite of the procedural apple. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at pp. 1090-1091.) The court concluded, however, that judicial economy is not served by requiring employees who have allegedly suffered discrimination at the hands of public employers to pursue redress in two separate forums. (Id. at p. 1091.)

^[7]As previously noted, plaintiff filed his original complaint while he was still employed by defendant District seeking, among other things, damages for injuries he claimed to have suffered as a result of harassment and discrimination that occurred during that time. Plaintiff filed a tort claim with respect to the conduct that occurred before his employment was terminated. Plaintiff did not file a tort claim after his employment was terminated and that is the issue defendants raised in their summary adjudication motion.