The opinion
Filed 2/16/18; on rehearing
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
SHAWN TERRIS, 2d Civ. No. B268849
(Super. Ct. No. 1339241)
Plaintiff and Appellant, (Santa Barbara County)
v. OPINION FOLLOWING
REHEARING
COUNTY OF SANTA BARBARA,
Defendant and Respondent.
Campbell v. Regents of University of California (2005) 35
Cal.4th 311 holds that public employees must pursue appropriate
internal administrative remedies before filing a civil action
against their employer. Labor Code section 244 does not require
a litigant to exhaust administrative remedies before bringing a
civil action.1 Here we hold section 244 applies only to claims
before the Labor Commissioner. It has no effect on the Campbell
rule.
*Pursuant to California Rules of Court, rules 8.1100 and 8.1110,
this opinion is certified for partial publication. The portions of
this opinion to be deleted from publication are identified as those
portions between double brackets, e.g., [[/]].
All statutory references are to the Labor Code unless
1
otherwise stated.
Plaintiff Shawn Terris appeals a summary judgment in
favor of her former employer, defendant County of Santa Barbara
(County), in her wrongful termination action. We conclude,
among other things, that: 1) Terris did not exhaust her
administrative remedies on her claims that the County
terminated her job to discriminate against her in violation of
sections 1101, 1102, and 1102.5; [[2) there are no triable issues of
fact on Terris’s claim that she was terminated because of her
sexual orientation (Gov. Code, § 12940, subd. (a), Fair
Employment and Housing Act (FEHA));]] but 3) the trial court
erred by awarding the County costs on the FEHA cause of action.
We affirm in part and reverse in part.
FACTS
Terris was a County employee in the position of a “Program
Business Leader” analyst. She was subject to civil services rules.
The County projected a “budget shortfall for the fiscal year 2009-
2010” of nearly $11 million. Terris was one of 35 employees laid
off.
After receiving a layoff notice in July 2009, Terris exercised
her right to remain employed by displacing or “bump[ing]” a
person in another position--the “First 5 Program/Business
Leader.” Patricia Wheatley, the director of First 5 Santa
Barbara, decided that position required special skills. She
requested a “special skills designation” to expand the
requirements for that position. Theresa Duer, the County
assistant human resources director, granted that request and
determined Terris was not qualified for that position. Terris was
laid off.
Terris filed a complaint with the County’s Civil Service
Commission (Commission). She alleged her termination
procedure violated her seniority rights. She argued the County
2.
and County Executive Officer (CEO) Michael F. Brown engaged
in “discrimination against her for exercising her rights as a
County employee, as an elected Santa Barbara County
Employees Retirement Board Trustee, and for filing a Claim
Against Public Entity . . . .”
On August 20, 2009, the Commission ruled that 1) it could
decide whether the County followed the proper procedures for
terminating Terris’s employment, but 2) it could not decide
Terris’s discrimination claims because she had not exhausted her
administrative remedy of filing a discrimination complaint with
the Equal Employment Opportunity Office (EEO). Terris did not
file an EEO complaint. She urged the Commission to decide only
whether the County followed the proper procedures in
terminating her employment.
One month later, the Commission ruled the special skills
designation was appropriate, the layoff was authorized, and the
County complied with all required procedures. It found, “[A]ll
proper notices were given and seniority was followed.”
Terris filed a wrongful termination and employment
discrimination action. In her third amended complaint, she
alleged the County: 1) terminated her employment to prevent
her from holding an elected office as a retirement board trustee
(§ 1101) (second cause of action), 2) interfered with her political
activity as a retirement board trustee (§ 1102) (third cause of
action), and 3) retaliated against her for lawful complaints she
had made (§ 1102.5) (fourth cause of action). [[In her fifth cause
of action, she alleged sexual orientation discrimination. She said
the County “regarded her as [a] lesbian,” which was the
“motivating factor” in its decision to terminate her. (Gov. Code,
§ 12940, subd. (a) (FEHA).)]]
3.
The trial court granted the County’s motion for summary
judgment. It found: 1) Terris did not exhaust her administrative
remedies on her second, third and fourth causes of action; and 2)
there was no triable issue of fact on her FEHA cause of action.
DISCUSSION
Exhausting Administrative Remedies
Terris contends the trial court erred in ruling that she
failed to exhaust her administrative remedies before filing her
wrongful termination action alleging violation of sections 1101,
1102, and 1102.5. We disagree.
“[T]he party moving for summary judgment” must “make a
prima facie showing of the nonexistence of any triable issue of
material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 850.) “[I]f he carries his burden,” the opposing party
must make “a prima facie showing of [a triable issue].” (Ibid.)
We review summary judgments de novo. (Suarez v. Pacific
Northstar Mechanical, Inc. (2009) 180 Cal.App.4th 430, 436.)
“‘We are not bound by the trial court’s stated reasons or
rationales.’” (Ibid.)
“‘[W]here an administrative remedy is provided by statute,
relief must be sought from the administrative body and this
remedy exhausted before the courts will act.’” (Campbell v.
Regents of University of California, supra, 35 Cal.4th 311, 321.)
Administrative remedies include “internal grievance procedures”
provided by a public entity. (Ibid.) County employees must
exhaust internal administrative remedies that are provided in
county civil service rules. (Los Angeles County Employees Assn.
v. County of Los Angeles (1976) 61 Cal.App.3d 926, 934.) Terris
was a County employee “subject to the” County’s “Civil Service
Rules.”
4.
Terris claims the County’s discriminatory employment
action included: 1) terminating her employment to interfere
“with her holding an elected office as a Retirement Board
Trustee” (§ 1101); 2) attempting to coerce “and influence” her
“political activity as a Retirement Board Trustee” (§ 1102); and 3)
retaliating against her because of her “complaints about
violations of her activity directed to labor organizing County
workers” (§ 1102.5).
The County claims Terris had an administrative remedy to
resolve these claims, which she did not pursue. We agree. Terris
was required to file an EEO complaint, and if she disagreed with
the EEO report, she could file “an appeal directly to the
[Commission].” The EEO investigates employment
discrimination based on violations of sections 1101, 1102, and
1102.5. The civil service rules provided her with “the right to
challenge the alleged discrimination . . . before the
Commission . . . .” Terris could have subpoenaed witnesses to
testify at an evidentiary hearing. She could have sought judicial
review of the Commission’s decisions on her discrimination
claims through administrative mandamus. The Commission had
the authority to reinstate her and order back pay and attorney
fees if it so decided.
Terris acknowledged she “did not file an EEO complaint
prior to pursuing claims for violation of [sections] 1101, 1102, and
1102.5.” (Campbell v. Regents of University of California, supra,
35 Cal.4th at pp. 329-333 [public employee who claimed
retaliatory job termination in violation of the Labor Code had to
exhaust the employer’s internal administrative remedies];
Palmer v. Regents of University of California (2003) 107
Cal.App.4th 899, 904 [“When a . . . public entity establishes an
internal grievance mechanism, . . . failure to exhaust those
5.
internal remedies precludes any subsequent private civil
action”].)
The Satyadi Decision and Section 244
Terris argues Satyadi v. West Contra Costa Healthcare
Dist. (2014) 232 Cal.App.4th 1022 and section 244 support her
contention that she is not required to exhaust her administrative
remedies. Quite the contrary, Satyadi holds that an employee
does not have to file a Labor Commissioner claim before suing her
employer. But it also instructs that an employee subject to
county civil service “internal administrative remedies” must
exhaust them. “[I]t appears Satyadi has exhausted her employer’s
internal administrative remedies. (See Campbell [v. Regents of
University of California,] supra, 35 Cal.4th at p. 333.) The
exhaustion doctrine therefore poses no further barrier to her
action.” (Satyadi, at p. 1033, italics added.)
Section 244, subdivision (a) provides, in relevant part, “An
individual is not required to exhaust administrative remedies or
procedures in order to bring a civil action under any provision of
this code . . . .” But the phrase “administrative remedies” refers
to Labor Commissioner claims. The author of Senate Bill No. 666
said it allows employees to sue “without having first sought
administrative remedies that are enforceable by the Labor
Commissioner.” (Historical and Statutory Notes, 44 West’s Ann.
Lab. Code (2018 cum. pocket pt.) § 244, p. 310.) It merely
clarifies existing law. (Satyadi v. West Contra Costa Healthcare
Dist., supra, 232 Cal.App.4th at pp. 1032-1033.)
Terris relies on Neushul v. Regents of the University of
California (C.D.Cal. 2016) 168 F.Supp.3d 1242. There a
University of California employee filed a lawsuit under the Labor
Code against her employer without exhausting the employer’s
internal administrative remedies. The federal district court ruled
6.
she could proceed. The court reviewed the relevant California
Labor Code provisions and said, “Plaintiff sues under § 1102.5,
which . . . contains no exhaustion requirement. [Citations.] And
§ 244 now provides that if no exhaustion requirement is explicitly
set forth in the relevant provision of the Labor Code, including
§ 1102.5, then the plaintiff may pursue her claim without
exhausting administrative remedies. In other words, the
amendment of § 244 in 2014 necessarily means that [University
of California] policies requiring administrative exhaustion for
claims arising under § 1102.5 are contrary to the Labor Code’s
clear directive . . . .” (Id. at p. 1249, italics added.)
Neushul, a federal trial court, concluded that Campbell, a
California Supreme Court decision, is no longer valid law.
Neushul assumed that the term administrative remedies in the
statute applies to all types of administrative remedies. It
apparently reached its conclusion based on the literal language of
section 244, subdivision (a), which provides, “An individual is not
required to exhaust administrative remedies or procedures in
order to bring a civil action under any provision of this code,
unless that section under which the action is brought expressly
requires exhaustion of an administrative remedy.”
But Neushul did not consider the context and purpose of the
statutory change. “‘“[A] thing may be within the letter of the
statute and yet not within the statute, because not within its
spirit nor within the intention of its makers.”’” (Westfall v.
Swoap (1976) 58 Cal.App.3d 109, 116.) This is such a case.
As explained by the author of Senate Bill No. 666, section
244, subdivision (a) was enacted to protect the right to sue
without first having to exhaust Labor Commissioner
administrative proceedings. At the same time section 244,
subdivision (a) was enacted (Stats. 2013, ch. 577, § 41), the
7.
Legislature also amended section 98.7 involving Labor
Commissioner claims. (Stats. 2013, ch. 732, § 3.) It added the
following provision: “In the enforcement of this section, there is no
requirement that an individual exhaust administrative remedies
or procedures.” (§ 98.7, subd. (g), italics added.)
By making these changes, the Legislature resolved a
specific ongoing legal controversy. Courts had reached conflicting
results on whether Campbell’s exhaustion requirement meant a
plaintiff had to initially file a claim with the Labor Commissioner
before filing an action. (Satyadi v. West Contra Costa Healthcare
Dist., supra, 232 Cal.App.4th at p. 1031; see also Miller v.
Southwest Airlines Co. (N.D.Cal. 2013) 923 F.Supp.2d 1206, 1210
[Campbell requires initial exhaustion of Labor Commissioner
claim before filing the lawsuit]), compare with Dowell v. Contra
Costa County (N.D.Cal. 2013) 928 F.Supp.2d 1137, 1153
[“‘Campbell only held that exhaustion of internal administrative
remedies is required; there is no discussion in Campbell of
exhaustion of administrative remedies before the Labor
Commission’”].) The legislative amendments were specifically
related to resolving this problem.
On page 4 of the written description of Senate Bill No. 666,
at the April 30, 2013, Senate Judiciary Committee hearing (2013-
2014 Reg. Sess.), the author of the bill said it would clarify a
problem in existing law. He said the problem is that “various
statutes under the Labor Code require the employee or applicant
to first file a claim against the employer with the Labor
Commissioner . . . .” (Ibid., italics added.)
Satyadi describes the reason for the Legislature’s 2013
amendments. It said the amendments “merely confirm that a
party may bring a civil action for violation of the Labor Code
without first exhausting the remedy provided by section 98.7,
8.
subdivision (a)”--a Labor Commissioner claim. (Satyadi v. West
Contra Costa Healthcare Dist., supra, 232 Cal.App.4th at p. 1032,
italics added.)
There is no basis to conclude the Legislature enacted
section 244, subdivision (a) to overturn a California Supreme
Court decision--Campbell, or to extinguish decades of judicially
required administrative exhaustion requirements for county
employees who have civil service commission internal
administrative remedies. As Campbell said, “‘[C]ourts should not
presume the Legislature in the enactment of statutes intends to
overthrow long-established principles of law unless that intention
is made clearly to appear either by express declaration or by
necessary implication.’” (Campbell v. Regents of the University of
California, supra, 35 Cal.4th at p. 329, italics added.) Here there
is no express legislative declaration that the statute was intended
to eliminate the Campbell internal administrative remedy
exhaustion requirement. Neither the Legislative Counsel’s
Digest nor the author’s summary of Senate Bill No. 666 makes
any reference to Campbell.
In Campbell, our Supreme Court reviewed its prior
decisions and said they represent “a respect for internal grievance
procedures and the exhaustion requirement where the Legislature
has not specifically mandated its own administrative review
process.” (Campbell v. Regents of the University of California,
supra, 35 Cal.4th at p. 321, italics added.) By enacting section
244, subdivision (a), the Legislature did not create such a new
administrative review process that applies to all administrative
agencies. It eliminated the requirement that a claim must first
be bought before the Labor Commissioner before filing a civil
action.
9.
Adequate Notice
Terris contends the County did not provide her adequate
notice of her rights and the consequences. She claimed the
County’s notices only said she “may” appeal. But exhaustion of
administrative remedies is mandatory “‘even though the
administrative remedy is couched in permissive language.’”
(Marquez v. Gourley (2002) 102 Cal.App.4th 710, 714.) Moreover,
Terris admitted she “was aware of” the “EEO complaint
procedure” and was represented by counsel at all relevant stages.
The Commission also advised Terris and her counsel that if
Terris wanted to raise her Labor Code discrimination/retaliation
issues, she first had to file an EEO complaint. Because she had
not filed it, the Commission could only decide whether proper job
termination procedures were followed. It offered her a
continuance so that issue and the discrimination/retaliation
issues could be decided together. But she and her counsel
rejected that alternative and elected to have a Commission
hearing only on the procedural issues. Terris decided not to file
the EEO complaint. Consequently, her section 1101, 1102, and
1102.5 claims are barred. (Campbell v. Regents of University of
California, supra, 35 Cal.4th at p. 321; Basurto v. Imperial
Irrigation Dist. (2012) 211 Cal.App.4th 866, 888; Hooks v. State
Personnel Bd. (1980) 111 Cal.App.3d 572, 578 [plaintiff is barred
from raising issues in court that could have been raised, but were
not, in the administrative proceeding involving the employment
termination].) Therefore, we do not consider Terris’s second,
third and fourth causes of action. These causes of action relate to
her activities as a retirement board trustee and her complaints
about employer practices.
10.
[[Discrimination Based on Sexual Orientation
Terris contends in her fifth cause of action she “established
triable issues of fact . . . for wrongful termination based on her
sexual orientation.” (Gov. Code, § 12940, subd. (a) (FEHA).) She
alleged the County “regarded her as [a] lesbian,” which was its
“motivating factor” for her layoff. She said she “revealed her
sexual orientation publicly in or around 2003.”
Brown’s Remarks
Terris claimed between 1998 and 2001, County CEO Brown
used the terms “fags,” “faggots,” and “queers” to describe
“homosexuals.” Terris relies on these remarks to support her
FEHA cause of action.
Admissibility
The County contends these remarks are inadmissible. It
notes that Terris entered into “settlement agreements with the
County in 2003 and in 2006 in which she relinquished her right
to sue the County for actions occurring prior to the settlement
dates.” The 2006 agreement provides that Terris may not
“maintain” a “judicial proceeding” against the County “based
wholly or in part on any conduct” by the County “occurring at any
time prior to the signing of this Agreement.” (Italics added.) In
her reply brief, Terris made no showing on how she could rely on
Brown’s 1998 to 2001 remarks in light of these settlement
agreements. (Estate of Thottam (2008) 165 Cal.App.4th 1331,
1339.) But even had she made such a showing, the result would
not change.
The Merits
Government Code section 12940, subdivision (a) “prohibits
discrimination that causes an employer” to “discharge the person
from employment.” (Harris v. City of Santa Monica (2013) 56
Cal.4th 203, 231.) “[It] does not purport to outlaw discriminatory
11.
thoughts, beliefs, or stray remarks that are unconnected to
employment decisionmaking.” (Ibid.) “[S]uch comments alone do
not support a claim under section 12940(a) . . . .” (Ibid.)
The County claims Brown did not know Terris’s sexual
orientation and his “stray remarks” were not directed at her.
(Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th
264, 282 [no sexual harassment claim “where a supervisor . . .
simply uses crude or inappropriate language . . . without
directing . . . gender-related language toward a plaintiff”].) Terris
testified she did not know if Brown knew she was a lesbian when
he made his remarks in 1998 to 2001. She did not tell him her
sexual identity at that time or in 2003. She said his remarks
“were not directed at, or regarding” her.
Terris claimed that in a conversation between 1998 and
2001, Brown said his son and his son’s friends used the term “fag”
to describe homosexuals and Brown said it was “a common term
to describe homosexuals.” Such language is inappropriate, but
FEHA is not a “civility code” (Lyle v. Warner Brothers Television
Productions, supra, 38 Cal.4th at p. 295), and bigoted language
alone does not support a FEHA case. (Harris v. City of Santa
Monica, supra, 56 Cal.4th at p. 231.) Terris alleged Brown was
“hostile to homosexuals.” But in her deposition, she said, “I don’t
know if he dislikes homosexuals.” (Italics added.) Proof of
“discriminatory animus” is necessary. (Arteaga v. Brink’s, Inc.
(2008) 163 Cal.App.4th 327, 343.)
Causation
The alleged discrimination must be a substantial factor in
causing the adverse employment action. (Harris v. City of Santa
Monica, supra, 56 Cal.4th at pp. 231, 232.) A party must file “an
administrative complaint with DFEH [Department of Fair
Employment and Housing]” within one year of the FEHA
12.
violation. (Dominguez v. Washington Mutual Bank (2008) 168
Cal.App.4th 714, 720.) Terris admitted that she had “no
evidence” of sexual orientation discrimination within the year
prior to filing the DFEH claim. That period may be extended “if
discriminatory practices” occurred beyond that period. (Id. at
p. 721.)
The County claims there is no evidence of sexual
orientation discriminatory practices leading to her layoff.
Brown’s comments occurred between 1998 and 2001. Terris’s
layoff was in 2009. Terris testified that between 2003 and 2009,
Brown made no derogatory comments to her about
“homosexuality,” her “status as a lesbian,” or any statements
about her “sexual orientation.” An employer’s year-old remarks
are not too remote as causation evidence. (Danzer v. Norden
Systems, Inc. (2d Cir. 1998) 151 F.3d 50, 55.) But here there was
a huge gap in the causal nexus--eight years between the remarks
and the layoff.
The County’s Reasons for the Layoff and Terris’s Response
The County contends, assuming Terris made a showing of
discrimination, it presented nondiscriminatory reasons for her
layoff. If the employer makes that showing, the employee must
show the employer’s reasons are a pretext or prove
discrimination. (Scotch v. Art Institute of California (2009) 173
Cal.App.4th 986, 1005.)
The County projected a “budget shortfall for the fiscal year
2009-2010” of nearly $11 million. Terris was one of the 35
employees laid off for “the fiscal year 2008-2009.” The County
had a nondiscriminatory reason for initiating layoffs.
(Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187
Cal.App.3d 299, 321.)
13.
Terris claims that “[i]n the fiscal year in which [she] was
laid off, there were approximately eight analysts in the CEO’s
Department . . . . Of those, . . . [Terris] had the most seniority”
and she was laid off. But she was not the only one ultimately laid
off in her unit in 2009, and she was not in the same employment
classification as the other analysts. (Gates v. Caterpillar, Inc.
(7th Cir. 2008) 513 F.3d 680, 690 [discriminatory treatment claim
requires proof that the other employees were “directly
comparable to [the plaintiff] in all material respects”].) Terris
said the other employees had agreed to the employer’s request to
become “at will” analysts. She did not agree.
The County’s alleged preference for an “at will” workforce is
not an invalid business interest. (Engquist v. Oregon Department
of Agriculture (2008) 553 U.S. 591, 606; Darr v. Town of Telluride
(10th Cir. 2007) 495 F.3d 1243, 1257 [“the due process clause
does not preclude public employers from maintaining at-will
employment relationships”].) Such a business goal is not
unlawful discrimination. (Engquist, at p. 606; Hicks v. KNTV
Television, Inc. (2008) 160 Cal.App.4th 994, 1011.) Employment
discrimination laws permit the County to make necessary
management decisions. (Texas Dept. of Community Affairs v.
Burdine (1981) 450 U.S. 248, 259.) That includes the “freedom to
reorganize, reduce, and consolidate its work force.” (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 338.)
Moreover, the County’s evidence shows an attempt to
prevent layoffs for any of the CEO analysts by selecting Terris’s
position. That allowed Terris to maintain employment by
exercising her civil service bumping rights to obtain another
position. The other analysts did not have those rights. Terris
disagrees with the County’s choice, but she has not shown its
action did not further valid interests. The County said it
14.
responded to the financial crisis and achieved fairness by meeting
“the obligation to cut the budget while preserving [Terris’s] job.”
(Italics added.)
Terris claims Brown’s and the County’s actions show they
were “hostile to homosexuals.” But “we can draw an inference of
discrimination only if plaintiff ‘“can show that others not in the
protected class were treated more favorably.”’” (Gibbs v.
Consolidated Services (2003) 111 Cal.App.4th 794, 800.) Terris 1)
did not present evidence of the sexual orientation of those who
were laid off and not laid off, and 2) did not show any County
practices based on her sexual identity. In separate statement No.
39, she listed the evidence supporting her FEHA case as Brown’s
stray remarks between 1998 and 2001. But that, “[by] itself, does
not prove actionable discrimination.” (Reid v. Google, Inc. (2010)
50 Cal.4th 512, 541, italics added; see also Harris v. City of Santa
Monica, supra, 56 Cal.4th at p. 231.) Moreover, Terris admitted
that she did not “know if [Brown] dislikes homosexuals.”
Terris contends Brown should have laid off other
employees. But showing “triable issues concerning the
appropriateness of the adverse action” is not enough. (Hersant v.
Department of Social Services (1997) 57 Cal.App.4th 997, 1005.)
The Board of Supervisors approved the budget that authorized
the layoffs. (County of Butte v. Superior Court (1985) 176
Cal.App.3d 693, 698.) Terris does not claim the supervisors were
biased, and she “‘“cannot simply show that the employer’s
decision was wrong or mistaken, since the . . . issue is whether
discriminatory animus motivated the employer.”’” (Arteaga v.
Brink’s, Inc., supra, 163 Cal.App.4th at p. 343.) There was a 3
percent cut in the “CEO Department” budget. Robert Geis, the
County auditor-controller, declared the layoffs “were necessary”
for the County to operate within the budget.
15.
Terris suggests Brown could have manipulated the budget
process to target her because of her sexual identity. But County
administrators do not approve the budget (County of Butte v.
Superior Court, supra, 176 Cal.App.3d at p. 699), and speculation
does not suffice. (Hanson v. Lucky Stores, Inc. (1999) 74
Cal.App.4th 215, 225; Davis v. Time Warner Cable (7th Cir. 2011)
651 F.3d 664, 676.) The County objected to the lack of admissible
evidence to support this claim, and separate statements Nos. 37
and 39 support its position. Terris did not show how Brown’s
eight-year-old remarks were “linked to [her] termination.”
(Davis, at p. 672.) She admitted those remarks were “not
directed at [her]” and she did not know “if [Brown] dislikes
homosexuals.” Terris presented no evidence showing sexual
orientation played any role in the alleged budget manipulations.
She also admitted that 1) there was an “extreme budget crisis,”
and 2) “it was necessary for the County to make the difficult
decision that some County employees must be laid off.” (Italics
added.) Where economic necessity mandates a workforce
reduction, the employee must show more than only “a weak
suspicion that discrimination was a likely basis” for his or her
layoff. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp.
369-370.)
Duer’s and Wheatley’s Decisions
The County also notes that people other than Brown
initiated the process that ultimately caused her layoff. Terris
exercised “her option to displace or ‘bump’ the First 5
Program/Business Leader” to avoid a layoff. Wheatley decided
this position required special skills. Duer determined Terris did
not have those skills. Terris admitted that Duer and Wheatley
had not “discriminated” against her “in any way.” Duer declared
she had “no knowledge” of Terris’s “sexual orientation, and it had
16.
no bearing on [her] decision . . . .” Terris did not meet her burden
to challenge those facts or show “any wrongful act.” (Martin v.
Lockheed Missiles & Space Co., Inc. (1994) 29 Cal.App.4th 1718,
1731.) “Absent a reason to doubt the validity” of Duer’s and
Wheatley’s decisions, the County “was entitled to rely on this
information in deciding to terminate [Terris’s] employment and
acted reasonably in doing so.” (Chen v. Dow Chemical Co. (6th
Cir. 2009) 580 F.3d 394, 401, italics added.)
Terris claims Brown ultimately approved an unfair process
causing her layoff in violation of her seniority rights. But the
Commission found the process was fair and “seniority was
followed.” It upheld the layoff because of Terris’s lack of
qualifications. The County notes Terris did not appeal that
decision which is now final. The Commission’s findings are
binding on employees who do not timely petition for
administrative mandamus relief. (Schifando v. City of Los
Angeles (2003) 31 Cal.4th 1074, 1090-1091; Castillo v. City of Los
Angeles (2001) 92 Cal.App.4th 477, 481; Kupka v. Board of
Administration (1981) 122 Cal.App.3d 791, 794-795.) Those
findings show valid grounds for the layoff.
Moreover, the County claimed Brown made decisions that
protected Terris’s rights. Brown determined she had the right to
bump the First 5 Program /Business Leader to avoid a layoff. He
said he expected she would “take advantage of bumping.” “It
would be wholly inconsistent to intentionally discriminate while
simultaneously giving the alleged targets of the discrimination
an unfettered option to remove themselves from the situation.”
(Davis v. Time Warner Cable, supra, 651 F.3d at p. 676, italics
added.) Brown also rejected Wheatley’s first request to place a
special skills designation for that position. That also protected
Terris. Wheatley later made a more comprehensive justification
17.
for the special skills designation which Duer granted. They had a
nondiscriminatory reason for adding these requirements and for
the layoff. (Gibbs v. Consolidated Services, supra, 111
Cal.App.4th at p. 800 [employers may properly discharge
employees who lack the skills for “restructured” positions].)
Terris notes that between March 9, 2006, and July 13,
2009, she made 11 complaints about County actions. But she
describes these complaints to be about the County interfering
“with her role as Retirement Board Trustee and her union
organizing activities”--issues for which Terris had an
administrative remedy which she did not exhaust and cannot
relitigate. (Campbell v. Regents of University of California,
supra, 35 Cal.4th at p. 321; Basurto v. Imperial Irrigation Dist.,
supra, 211 Cal.App.4th at p. 888; Hooks v. State Personnel Board,
supra, 111 Cal.App.3d at p. 578.)
Moreover, these were not complaints about sexual
orientation discrimination directed against her. Terris said she
“revealed her sexual orientation publicly” in 2003. But she was
unable to state any facts showing that between 2003 and her
2009 layoff that any County officer, employee or agent treated
her as or “perceived” her “to be lesbian” as alleged in her FEHA
cause of action. She had “no evidence of discrimination related to
her sexual orientation that occurred in the one year before she
filed her FEHA complaint with [DFEH].” Separate statement
No. 39 shows her inability to prove sexual orientation was “a
substantial factor” in causing the layoff. (Harris v. City of Santa
Monica, supra, 56 Cal.4th at p. 232.)]]
Costs
The parties note that the trial court awarded the County
costs on Terris’s FEHA and non-FEHA causes of action. Terris
contends it erred by awarding the FEHA costs. We agree. Costs
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are not generally awarded against employees who file
unsuccessful FEHA cases. (Williams v. Chino Valley Independent
Fire Dist. (2015) 61 Cal.4th 97, 115.) Awarding costs against
them could undermine the state’s anti-discrimination public
policy and have a chilling effect on meritorious FEHA “suits by
plaintiffs with limited financial resources.” (Id. at p. 113.) There
is, however, an exception to this rule for frivolous litigation. But
it does not apply here. The inability to prove an FEHA element
is not equivalent to filing an entirely baseless lawsuit. We have
reviewed Terris’s remaining contentions and we conclude she has
not shown other grounds for reversal.
DISPOSITION
The order awarding the County costs on the FEHA cause of
action is reversed and the matter is remanded to the trial court to
redetermine costs. In all other respects, the judgment is
affirmed. The parties shall bear their own costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Donna D. Geck, Judge
Superior Court County of Santa Barbara
______________________________
James H. Cordes for Plaintiff and Appellant.
Nye, Peabody, Stirling, Hale & Miller, LLP, Jonathan
D. Miller, Holly C. Blackwell for Defendant and Respondent.
20.