Metropolitan News-Enterprise


Tuesday, November 13, 2007


Page 1


C.A.: Worker Need Not Exhaust Grievance to Sue Under FEHA




A college employee need not exhaust the grievance procedure in his union’s collective bargaining agreement before suing for violation of the Fair Employment and Housing Act, the First District Court of Appeal ruled Friday.

Div. Five reinstated two suits by former Contra Costa Community College head football coach Jose Ortega suit against the college district. Ortega sued following his demotion to a teaching position in March 2004 and again after he was terminated at the end of the 2005 school year.

Ortega was hired by the district as an assistant football coach in 1996, and served as head coach from August 1999 until his demotion. He brought a grievance after his demotion, but the grievance process was not completed and Ortega filed a complaint with the Department of Fair Employment and Housing in April 2004.

The grievance procedure, set forth in a CBA between United Faculty of Contra Costa Community College District and the college, required submission of a grievance to the college president; if the president did not resolve the matter to the employee’s satisfaction, an appeal could be taken to the chancellor.

If the chancellor did not resolve the matter, the employee could ask the union to demand factfinding by a tripartite panel, whose decision would be binding in some circumstances. Alternatively, the employee could bypass the factfinding process and appeal to the board of trustees, with or without the union’s participation.

In Ortega’s case, the union and the district had each named a member to a factfinding panel after the president and chancellor had each rejected the grievance, but the process went no further.

After receiving a right-to-sue letter from the DFEH, Ortega filed suit, claiming he was subjected to disparate treatment because he was Hispanic and demanding reinstatement, damages, and injunctive relief.

While that suit was pending, Ortega was terminated and filed a second grievance, which was denied by the college president. Ortega filed another complaint with the DFEH, received another right-to-sue letter, and filed his second suit.

Both suits were dismissed, by separate judges, for failure to exhaust the grievance process. The cases were consolidated on appeal.

Justice Mark Simons, writing for the Court of Appeal, said both judges were wrong. FEHA plaintiffs must exhaust administrative remedies provided by statute, which Ortega did by filing with the DFEH and obtaining right-to-sue letters, but are not required to exhaust a process created by a collective bargaining agreement, Simons said.

The justice distinguished cases holding that a public employee, while not obligated to enter into an internal grievance process as a prerequisite to sue under the FEHA, may not withdraw from such a process once it has been invoked.

The difference between those cases and Ortega’s, the justice explained, is that those cases involved processes established by law and not merely by contract. The Court of Appeal, he noted, has ruled that an adverse ruling in a labor arbitration proceeding under a CBA—unlike one in a statutory civil service proceeding—lacks preclusive effect in a FEHA action.

It would be unfair, the justice elaborated, to deprive an employee of his rights under FEHA based on the existence, or outcome, of a procedure under which the vindication of those rights is dependent on that worker’s union, which “may well have good faith representational interests that differ from the employee’s individual interests.”

Simons went on to say that Ortega was not required to exhaust internal remedies with respect to his non-FEHA claims of intentional infliction of emotional distress and negligent supervision, since both were related to his discrimination claims.

The case is Ortega v. Contra Costa Community College District, A113341.


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