Metropolitan News-Enterprise


Monday, April 1, 2002


Page 5


Failure to Exhaust Remedy Under Charter Bars FEHA Claim, C.A. Rules


By a MetNews Staff Writer


An employee of a charter city must exhaust administrative remedies under both the charter and the Fair Employment and Housing Act before suing for a violation of the act, this district’s Court of Appeal ruled Friday.

Div. Three upheld the dismissal of Steve Schifando’s suit against the city of Los Angeles, in which he alleges he was constructively terminated from his job as a storekeeper for the Parks and Recreation Department because of a physical disability.

While Schifando’s complaint alleged that he filed an administrative complaint and received a right-to-sue letter from the Department of Fair Employment and Housing, Div. Three ruled, it did not and could not allege compliance with Sec. 112fi of the former city charter.

The provision required that a worker challenging a suspension, layoff, or discharge file a demand for reinstatement and claim for compensation within 90 days, and the Court of Appeal has previously held it applicable to claims of constructive discharge.

Schifando alleged that when he met with his supervisors to complain about a change in his duties, they argued with him and pressured him to quit, trying to take advantage of what they knew to be his severe hypertension.

When he began to sweat profusely and had difficulty breathing, he contended, he exclaimed “I can’t take it anymore, I quit.” Told that he had to put his resignation in writing, he said, he took a piece of paper and wrote “I quit.”

He was then handed a form, which he signed without knowing what it was, he later claimed. He subsequently learned that it was a resignation form and that one of the supervisors turned it in for processing.

Los Angeles Superior Court Judge Morris B. Jones sustained the city’s demurrer.

Justice Patti S. Kitching, writing for the Court of Appeal, said the trial judge was correct.

“We find that the exhaustion of either administrative remedy would promote judicial economy and afford due respect to the administrative agency,” the jurist wrote. “Moreover, the pursuit of both administrative remedies ordinarily would not prejudice or unduly burden the city employee.  We therefore conclude that a city employee must exhaust both administrative remedies.”

Kitching elaborated that both the DFEH and the city are entitled to have their administrative processes respected. A different rule might apply, she suggested, if the two processes conflicted or if the remedies could not be pursued simultaneously.

“We cannot assume, however, that either the absence of an express requirement in FEHA that a plaintiff must exhaust an employer’s internal grievance procedures or the provision of an administrative remedy under FEHA indicates a legislative intent to preclude the common law requirement of exhaustion of an employer’s internal grievance procedures,” she wrote. “If the Legislature intended to relieve a plaintiff alleging a FEHA cause of action from the requirement to exhaust non-FEHA administrative remedies, we trust it would do so explicitly.”

The case is Schifando v. City of Los Angeles, B14299.


Copyright 2002, Metropolitan News Company