Page 1
Court of Appeal:
Administrative Remedies Not Exhausted Though Form Filed
Presenting Complaint to Equal Employment Opportunity Commission Did Not Satisfy Requisite for Suing for Employment Discrimination Where Differing Facts Were Set Forth in Superior Court Pleading, Wiley Says
By a MetNews Staff Writer
A Los Angeles Superior Court judge properly granted summary judgment to the California Department of Veteran Affairs in an action brought under the Fair Employment and Housing Act for employment discrimination because the plaintiff, though complying the requisite of filing an administrative complaint before suing, described different affronts in that complaint than in his lawsuit, the Court of Appeal for this district held yesterday.
In his opinion affirming the action by Judge Stephen T. Morgan, Justice John Shepard Wiley Jr. of Div. Eight said:
“Arno Kuigoua complained about employment oppression to an anti-discrimination agency and to a court. The trouble was he told two divergent stories: one to the agency, but a different one in court. By withholding from the agency the facts he would later allege in his judicial complaint, Kuigoua scotched the agency’s ability to learn about, and to conciliate, the dispute Kuigoua sought to litigate in the judicial forum. The court rightly granted summary judgment against Kuigoua for failing to exhaust his administrative remedies.”
On the form he filed with the Equal Employment Opportunity Commission, Kuigoua, a nurse, checked the boxes reading “SEX” and “RETALIATION” as the bases for his complaint. He set forth that he was “discriminated against because of my sex (Male), and I was retaliated against” for complaining about the discrimination.
Eventually, he was fired.
Changed Factual Assertions
In the lawsuit, he asserted discrimination and harassment based not only on gender but also on sexual orientation, race, color, and national origin. In the administrative complaint, he identified one person as his antagonist, and when he was working in the department’s West Los Angeles facility; in his pleading in the Superior Court he named two other persons as those who mistreated him and in a different time period at the Lancaster office.
Wiley wrote:
“Kuigoua loses this appeal because he changed horses in the middle of the stream. His agency complaint was one animal. On the far bank, however, his lawsuit emerged from the stream a different creature. Changing the facts denied the agency the opportunity to investigate the supposed wrongs Kuigoua made the focus of his judicial suit. The court rightly ruled Kuigoua failed to exhaust his administrative remedies.”
Crucial Test
He elaborated:
“The crucial exhaustion test is this: employees satisfy the administrative exhaustion requirement if their court claims are like, and reasonably related to, the claims they stated in their administrative filing….If an investigation of what was charged in the administrative complaint would necessarily uncover other incidents that were not charged, plaintiffs can include the latter incidents in their court action….
“If a plaintiff’s administrative complaint flunks this test, it frustrates the statute’s goals. Agencies cannot unearth and conciliate problems if plaintiffs do not tell the agency what the real problems are.”
The case is Kuigoua v. Department of Veteran Affairs, B323735.
Previous Decisions
The decision marks Kuigoua’s third loss in the Court of Appeal.
The Third District on Nov. 17, 2022, affirmed the denial of a writ of administrative mandamus challenging the decision of the State Personnel Board upholding his firing by the Veteran Affairs Department. Acting Presiding Justice Louis Mauro said in the unpublished opinion:
“Considering Kuigoua’s sexual misconduct, rude and discourteous behavior, insubordination, and failure to fulfill his responsibilities, dismissal was well within the realm of discretion afforded to the Board in its constitutional authority as the body assigned to make such decisions. And the numerous incidents of misconduct made it reasonable to infer Kuigoua would continue to engage in conduct harmful to the public service if he remained in his job.
On Aug. 14, 2020, Div. Five of this district, in an unpublished opinion by Presiding Justice Laurence D. Rubin, affirmed a summary judgment granted by Los Angeles Superior Court Judge David S. Cunningham III in favor of the California Correctional Health Care Services, for which Kuigoua worked before gaining employment with the Veteran Affairs Department. He alleged employment discrimination and wrongful termination.
Rubin wrote that “plaintiff did not present evidence that any claimed retaliation resulted in an adverse employment action” and was not wrongfully terminated because he wasn’t fired “but rather transferred” to the Department of Veteran Affairs “for his own reasons.”
The fact that Kuigoua “did not understand that his voluntary assumption” of the Veteran Affairs position as a nurse precluded him from continuing to work as a nurse at Lancaster Prison “did not convert his unforced job change into a wrongful termination.”
Copyright 2024, Metropolitan News Company