Rojo v. Kliger

Page 158

257 Cal.Rptr. 158

Previously published at 220 Cal.App.3d 412

220 Cal.App.3d 412

Emma ROJO and Teresa Maloney, Plaintiffs and Appellants, v. Irwin H. KLIGER, and Irwin H. Kliger, M.D., a Medical Corporation, et al., Defendants and Respondents.

Civ. B031801.

Court of Appeal, Second District, Division 3, California.

March 29, 1989.

As Modified April 25, 1989.

Review Granted July 20, 1989.

Patten, Faith & Sandford and Lorraine Grindstaff, Monrovia, for plaintiffs and appellants.

Knapp, Petersen & Clarke, Andre E. Jardini and Alan C. Arnall, Universal City, for defendants and respondents.

David C. Anton, Oakland, and Margaret E. Roeckl, Berkeley, as amicus curiae in support of plaintiffs and appellants.

Proskauer Rose Goetz & Mendelsohn, Jeffrey A. Berman and Steven G. Drapkin, Los Angeles, as amicus curiae in support of defendants and respondents.

KLEIN, Presiding Justice.

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

SUMMARY STATEMENT

The California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.), provides a remedy for the vindication of the constitutional right to be free of employment discrimination. (Cal. Const., art. I, § 8; State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 432, 217 Cal.Rptr. 16, 703 P.2d 354.) ² Sex discrimination in private employment contravenes this state's public policy expressed in article I, section 8, and gives rise to a claim for tortious wrongful discharge.

In enacting the FEHA, the Legislature did not intend to occupy the field so as to preempt common law causes of action. Therefore, a plaintiff may elect to pursue the administrative remedy afforded by the FEHA or file directly in a court of law. ³

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 section 12940, subdivision (i), of the FEHA, which requires an employer to take all reasonable steps to prevent discrimination and harassment, 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 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 touchings. 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, the trial court granted summary judgment for Kliger. ⁴

CONTENTIONS

Appellants contend the FEHA does not preempt other remedies available to plaintiffs who suffer 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 the doctrine of exhaustion of administrative remedies bars appellants' suit because the FEHA supersedes any common law remedies relating to employment discrimination.

DISCUSSION

1. California FEHA a manifestation of public policy against gender-based employment discrimination.

a. Summary statement.

As indicated, the trial court granted summary judgment in favor of Kliger on the ground appellants failed to exhaust their administrative remedy under the FEHA. An aggrieved party generally is required to pursue an available administrative remedy prior to seeking relief in a court of law. That course of conduct is necessary where the comprehensiveness of the statutory scheme compels the conclusion that any common law remedies concerning the same subject matter are superseded. (Pacific Scene, Inc. v. Penasquitos, Inc. (1988) 46 Cal.3d 407, 411-414, 250 Cal.Rptr. 651, 758 P.2d 1182.)

However, any implied preemption analysis can be defeated by a showing of a pre-existing common law remedy and a contrary intent expressed by the language of the statute itself. The FEHA contains such provisions. ( § 12993, subds. (a), (c).)

b. Historical overview.

1959 saw the adoption of the California Fair Employment Practice Act (FEPA) (former Lab.Code, § 1410 et seq.) and the creation of the State Fair Employment Practice Commission (former Lab.Code, § 1414), which was charged with preventing and eliminating unlawful employment practices by public and private employers (former Lab.Code, §§ 1413, 1420, 1421). The FEPA declared it is "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, or ancestry." (Former Lab.Code, § 1411, stats. 1959, ch. 121, § 1, p. 1999.) In 1970, sex finally was added to the FEPA as a protected category. (Stats. 1970, ch. 1508, § 1 p. 2994.)

The FEPA was repealed by Statutes 1980, chapter 992, section 11, page 3166, and revised, expanded and recodified in 1980 in the FEHA.

c. The FEHA.

" 'The [FEHA] 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 in pertinent part: "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 abridgement on account of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age."

d. Rules of statutory interpretation.

The applicable rules to be used in the interpretation of the statute 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.] [p] 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.]' [...