Rios v. The Regents of the University of Cal. CA2/3 ( 2020 )

Filed 12/29/20 Rios v. The Regents of the University of Cal. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
MARTHA RIOS, B291892
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC665103)
v.
THE REGENTS OF THE
UNIVERSITY OF CALIFORNIA,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Patricia Nieto, Judge. Affirmed.
Kim H. Pearman, A Law Corporation, Kim H. Pearman,
Robert L. Pearman, Garo Hagopian and Miguel Muro for Plaintiff
and Appellant.
Horvitz & Levy, Bradley S. Pauley and Eric S. Boorstin;
Gordon Rees Scully Mansukhani, Stephen E. Ronk, Erika L.
Shao and Nicole T. Lomibao for Defendant and Respondent.
________________________
Plaintiff and appellant Martha Rios (Rios) appeals an order
dismissing her action against defendant and respondent The
Regents of the University of California (the Regents) following
the sustaining of a demurrer to Rios’s second amended complaint
(SAC) without leave to amend.
In this action alleging a single cause of action for
harassment pursuant to the California Fair Employment and
Housing Act (FEHA) (Gov. Code, § 12900 et seq.),1 Rios failed to
exhaust her administrative remedies by filing a timely charge
with the Department of Fair Employment and Housing (DFEH),
which is a statutory prerequisite to filing suit. Therefore, the
order of dismissal is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. Rios quits her job and files a charge with the DFEH
alleging discrimination based on her relative youth or for
“unknown” reasons.
In September 2016, after 17 years, Rios quit her job as a
collections representative at UCLA Medical Center.
In February 2017, Rios filed an administrative charge with
the DFEH. In that filing, Rios asserted that “possibly [her] age
and long employment” made her supervisor of the past six years,
Margarita Flores (Flores), “jealous.” Rios stated: “I believe that
[Flores] was upset that at my young age I already had secured
1 All further statutory references are to the Government
Code.
2
my pension plan.[2] [Flores] made sure to ridicule me every
chance she could. She bullied me everyday [sic] I was in the
office. She was unable to tell me why I went from being a good
employee to being an employee who was not able to perform my
job.”
Rios checked boxes on the DFEH charge form to indicate
that she had experienced discrimination, harassment, and
retaliation because of “UNKNOWN,” and declined to check boxes
alleging discrimination because of her age (40 and over), sex,
gender, gender identity, gender expression, or sexual orientation.
Rios’s counsel requested an immediate right-to-sue letter,
and on February 24, 2017, the DFEH issued a notice of case
closure and right to sue notice.
2. Rios brings suit and the Regents demur to her pleadings.
In June 2017, Rios brought this civil action against the
Regents, alleging that Flores continuously harassed her in
violation of FEHA and that the harassment forced Rios to resign
her position.
The Regents filed a demurrer, contending that Rios had
“fail[ed] to allege any facts regarding on what basis, i.e., race, sex,
disability, etc., she was harassed to maintain a FEHA
harassment cause of action.”
While the demurrer to the original complaint was pending,
Rios filed a first amended complaint (FAC), in which she alleged
that in mid-2012, while she was at a restaurant/bar during non-
working hours, Flores entered the establishment and observed
Rios getting an exotic dance from a female dancer. The FAC
alleged that following that incident, Flores harassed Rios on a
2 Rios indicated on the DFEH charge form that she was 48
years of age.
3
daily basis, such as by humiliating her during staff meetings and
negatively commenting on her attire, despite the fact that Rios’s
co-workers wore a similar style of clothing. The FAC alleged that
Flores targeted Rios due to her gender expression and sexual
identity as a bisexual woman.
The Regents demurred to the FAC on the ground a FEHA
plaintiff must exhaust her administrative remedies with the
DFEH before bringing a civil action, and Rios’s new allegations of
harassment based on her sexual orientation were not set forth in
her DFEH charge. The trial court agreed and sustained the
demurrer to the FAC with leave to amend.
3. After filing an amended charge with the DFEH, Rios
filed the operative SAC; demurrer is sustained without leave to
amend.
In April 2018, Rios filed an amended charge with the
DFEH. This charge was based on the claim that in mid-2012,
Flores, her supervisor, had seen her obtain an exotic dance from
a female dancer, and thereafter Flores subjected Rios to ongoing
harassment causing her to quit. The amended charge stated that
Rios had experienced discrimination, harassment and retaliation
on account of her age, disability, gender, gender identity or
gender expression, and sexual orientation.
Five days later, Rios filed the operative SAC, alleging a
single cause of action for harassment by Flores that began after
the 2012 lap dancing incident. Rios pled that Flores harassed her
on account of her “gender expression and sexual identity as a bi-
sexual woman.” Rios further pled that she had complied with
FEHA by filing an amended charge with the DFEH and that she
had received a right-to-sue letter.
4
The Regents demurred to the SAC based on Rios’s failure to
satisfy FEHA’s exhaustion requirement. They argued the
amended DFEH charge did not relate back to Rios’s initial DFEH
charge, and that Rios could not cure the defect in the FAC by
filing an untimely amended DFEH charge. The harassment
claim based on sexual orientation, as pled in the SAC, was not
raised in Rios’s initial DFEH charge, and the harassment claim
based on sexual orientation was not “like or reasonably related
to” the allegations in the initial DFEH charge.
After hearing the matter, the trial court sustained the
Regents’ demurrer to the SAC without leave to amend. The trial
court ruled that Rios failed to exhaust her administrative
remedies because her original DFEH charge, which was timely,
did not set forth the same claim of harassment that she pled in
the operative SAC. Further, the amended DFEH charge, based
on sexual orientation, did not relate back to the filing of the
initial DFEH charge, which was based on a different set of facts.
Thus, the amended DFEH charge, filed April 4, 2018, was
untimely, because Rios’s employment admittedly ended on
September 23, 2016, and therefore Rios had only until September
23, 2017, to file a DFEH charge raising those issues.
Rios filed a timely notice of appeal.3
3 Rios appealed from the trial court’s order sustaining the
Regents’ demurrer to her SAC without leave to amend. It does
not appear that the trial court entered a further order or
judgment of dismissal. In September 2018, the clerk of this court
issued a letter stating that “[o]rdinarily no appeal lies from an
order sustaining a demurrer without leave to amend,” and
requested that appellant provide a copy of a dismissal order.
Receiving no response, the Administrative Presiding Justice
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CONTENTIONS
Rios contends she has sufficiently exhausted her
administrative remedies in order to state a cause of action under
FEHA, and that the relation-back doctrine does apply.
DISCUSSION
1. Standard of appellate review.
The sole issue before us is whether the demurrer should
have been sustained on the ground that Rios failed to exhaust her
administrative remedies under FEHA. Our review of the order
sustaining the demurrer is de novo (T.H. v. Novartis
Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162 (T.H.), with the
plaintiff bearing the burden of demonstrating that the demurrer
was sustained erroneously. (Allen v. City of Sacramento (2015)
234 Cal.App.4th 41, 52.)
dismissed the appeal in November 2018. In September 2019,
Rios filed a motion to recall the remittitur and reinstate the
appeal, asserting that she did not receive a copy of the court’s
September 2018 letter. In February 2020, the Administrative
Presiding Justice recalled the remittitur and reinstated the
appeal. At this juncture, we deem the order sustaining the
demurrer without leave to amend to incorporate an order of
dismissal and will review the order on the merits. (Sisemore v.
Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.)
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2. The FEHA exhaustion requirement.
At the relevant time, an employee bringing a FEHA action
was required to exhaust administrative remedies by filing an
administrative charge with the DFEH within one year of the date
the allegedly unlawful action occurred. (§ 12960, form. subd. (d);
Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th
1402, 1412; see now § 12960, subd. (e) [three years to file
administrative complaint]; Stats. 2019, ch. 709, § 1, eff. Jan. 1,
2020; Chin, Wiseman, Callahan & Lowe, Cal. Prac. Guide:
Employment Litigation (The Rutter Group 2020) ¶ 16:260
(hereafter Chin).)
Exhaustion of the FEHA administrative remedy is a
precondition to bringing a civil suit on a statutory cause of action.
(Rojo v. Kliger (1990) 52 Cal.3d 65, 83.) FEHA’s exhaustion
requirement serves the important policy interests embodied in
the statutory scheme of resolving disputes and eliminating
unlawful employment practices by conciliation, easing the burden
on the court system, maximizing the use of administrative agency
expertise and capability to order and monitor corrective
measures, and providing a more economical and less formal
means of resolving the dispute. (Ibid.; Wills v. Superior Court
(2011) 195 Cal.App.4th 143, 156 (Wills).)
“To exhaust his or her administrative remedies as to a
particular act made unlawful by [FEHA], the claim must specify
that act in the administrative complaint.” (Martin v. Lockheed
Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724 (Martin);
accord, Okoli v. Lockheed Technical Operations Co. (1995) 36
Cal.App.4th 1607, 1613 (Okoli).) Although the allegations of a
FEHA lawsuit need not be identical to the claims previously
identified in the DFEH charge, a FEHA claim cannot proceed in a
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civil complaint unless it is “ ‘like or reasonably related to’ ” the
charge submitted to the DFEH. (Okoli, at p. 1616.) This
standard is met “where the allegations in the civil suit are within
the scope of the administrative investigation ‘which can
reasonably be expected to grow out of the charge of
discrimination.’ ” (Rodriguez v. Airborne Express (9th Cir. 2001)
265 F.3d 890, 897 (Rodriguez).) Allegations in the civil complaint
“that fall outside of the scope of the administrative charge are
barred for failure to exhaust.” (Ibid.)
Thus, for example, in Okoli, the plaintiff filed a charge of
discrimination with the DFEH in which he alleged specific
instances of discrimination based on his race and national origin,
but did not file a subsequent charge based on acts of retaliation
by his employer. (Okoli, supra, 36 Cal.App.4th at p. 1613.)
“Since Okoli’s complaint added claims that were neither like nor
reasonably related to his DFEH claim and were not likely to be
uncovered in the course of a DFEH investigation, his retaliation
claim [was] barred by the exhaustion of remedies doctrine.” (Id.
at p. 1617, italics added.)
Similarly, in Martin, the plaintiff’s “theories of recovery
other than age discrimination were vitiated by her failure to
exhaust administrative remedies under California law.” (Martin,
supra, 29 Cal.App.4th at p. 1723.) The DFEH “never did learn of
Martin’s assertion that, in addition to the age discrimination of
which she originally complained, she had been a victim of sexual
harassment, retaliation, and sexual discrimination. Thus, . . . the
DFEH never received the opportunity, with respect to these
additional theories of violation of [FEHA], to pursue the ‘vital
policy interests embodied in [FEHA], i.e., the resolution of
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disputes and elimination of unlawful employment practices by
conciliation. [Citations.]’ ” (Id. at p. 1728.)
Likewise, in Rodriguez, supra, 265 F.3d at page 897, the
Ninth Circuit held that a DFEH charge alleging racial
discrimination did not permit plaintiff to proceed with a cause of
action for disability discrimination. The court concluded
plaintiff’s DFEH charge that the defendant discriminated against
Mexican-Americans “would not reasonably trigger an
investigation into discrimination on the ground of disability.”
(Ibid.) The court explained that it would not be proper to expand
the plaintiff’s claim “when ‘the difference between the [DFEH]
charge and the complaint is a matter of adding an entirely new
basis for the alleged discrimination.’ ” (Ibid., quoting Okoli,
supra, 36 Cal.App.4th at p. 1615.)
Other courts have similarly held that submitting a DFEH
charge of discrimination on one ground does not exhaust the
plaintiff’s administrative remedies so as to permit a plaintiff to
proceed with a lawsuit alleging discrimination on an entirely
different ground. (See, e.g., Wills, supra, 195 Cal.App.4th at
pp. 153–154, 157 [DFEH charge asserting discrimination based
on denial of family/medical leave and alleging that employer
discriminated against plaintiff by refusing to reinstate her
following a medical leave of absence did not permit plaintiff to
proceed with FEHA causes of action alleging coworker
harassment, retaliation for complaining about coworker
harassment, and failure by the employer to prevent workplace
harassment]; Stallcop v. Kaiser Foundation Hospitals (9th Cir.
1987) 820 F.2d 1044, 1047, 1051 [plaintiff’s DFEH charge
asserting she was terminated due to her Greek national origin
did not permit a civil action for sex and age discrimination].)
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3. Rios’s claim in her SAC that Flores harassed her on
account of her gender expression and sexual identity as a bisexual
woman is barred by the exhaustion of remedies doctrine.
As indicated, in the original DFEH charge, filed in
February 2017, Rios asserted that “possibly [her] age and long
employment” made her supervisor, Flores, “jealous” and caused
Flores to harass her. Rios stated she “believe[d] that [Flores] was
upset that at my young age I already had secured my pension
plan.”
Rios later abandoned that theory and alleged an entirely
different theory of harassment in the operative SAC. In this
pleading, Rios alleged that Flores harassed her due to her
“gender expression and sexual identity as a bisexual woman”
after observing a female exotic dancer “on [Rios’s] lap, kissing
[Rios], and dancing suggestively.” This theory of harassment
appeared nowhere in the February 2017 DFEH charge, which, as
explained below, was the sole timely DFEH charge. Thus, Rios
failed to exhaust her administrative remedy with respect to the
harassment claim that had its origin in the lap dance incident.
In the parlance of Okoli, Rios’s new theory of harassment based
on sexual orientation was “neither like nor reasonably related to
[her February 2017] DFEH [charge] and [was] not likely to be
uncovered in the course of a DFEH investigation” (Okoli, supra,
36 Cal.App.4th at p. 1617) of Rios’s claim that Flores harassed
her because Flores was envious of Rios having secured a pension
at a relatively young age.
The two cases on which Rios primarily relies are
distinguishable. In Sandhu v. Lockheed Missiles & Space Co.
(1994) 26 Cal.App.4th 846, 849, 858–859 (Sandhu), an East
Indian plaintiff from Punjab, India, who filed a DFEH charge
10
asserting discrimination because of his “ ‘race (Asian),’ ” was not
precluded from maintaining a FEHA action for discrimination
based on national origin. The appellate court recognized “ ‘the
difficulty, if not the impossibility of defining the term “race” as
distinguished from “national origin” ’ ” (id. at p. 853), and that
“there was no bright line distinction between discrimination
based on ancestry or ethnicity and that based on place or national
origin” (id. at p. 855, fn. 7). Accordingly, the court concluded that
a DFEH investigation into plaintiff’s claim of disparate treatment
because he was “ ‘Asian’ ” likely would have extended to both race
and national origin. (Id. at p. 859.)
Similarly, in Baker v. Children’s Hospital Medical Center
(1989) 209 Cal.App.3d 1057, 1060–1061, 1065 (Baker), a plaintiff
who alleged racial discrimination in his DFEH charge was
permitted to pursue related claims in his lawsuit that alleged he
suffered further acts of racial harassment, racial discrimination,
and retaliation for pursuing an internal grievance alleging racial
discrimination.
Given the total dissimilarity between Rios’s February 2017
DFEH charge and the theory of harassment that she pled in the
SAC, Rios’s reliance on Sandhu and Baker is unavailing. It
would not be proper to expand the claim as Rios asks, when “ ‘the
difference between the charge and the complaint is a matter of
adding an entirely new basis for the alleged discrimination.’ ”
(Okoli, supra, 36 Cal.App.4th at 1615.) Rios failed to exhaust her
administrative remedies with respect to the allegations in the
SAC that she was “target[ed] due to [her] gender expression and
sexual identity as a bisexual woman,” because these allegations
fall outside the scope of Rios’s timely DFEH charge that pled
discrimination, retaliation, and harassment motivated by Flores’s
11
envy that Rios “already had secured [her] pension plan” at a
relatively young age.
4. The untimely amendment of Rios’s DFEH charge did not
relate back to the original charge.
As noted, in an attempt to cure her failure to exhaust, on
April 4, 2018, after the trial court sustained the Regents’
demurrer to the FAC with leave to file the SAC, Rios filed an
amended DFEH charge. The amended DFEH charge alleged that
in mid-2012, Flores had seen her obtain an exotic dance from a
female dancer, leading to a course of harassment that caused
Rios to resign on September 23, 2016. As the trial court ruled,
the amended DFEH charge was untimely because it was filed
more than one year after Rios’s last day of employment.
(§ 12960, form. subd. (d); Acuna v. San Diego Gas & Electric Co.,
supra, 217 Cal.App.4th at p. 1412; see § 2 of the Discussion,
ante.)
Rios’s reliance on the relation back doctrine is unavailing.
The relation-back doctrine is available in appropriate
circumstances to render timely an otherwise untimely
amendment to a DFEH charge if the amendment is “ ‘based on
the same operative facts.’ ” (Chin, supra, at ¶ 16:263.5, italics
omitted.) By way of example, in Rodriguez, supra, 265 F.3d 890,
the factual allegations of the plaintiff’s timely DFEH charge,
which charged the employer with only race discrimination, did
not “reasonably support a claim of discrimination on the basis of
disability” (id. at p. 900), and therefore the amended charge
asserting disability discrimination did not relate back to the
original DFEH charge. (Id. at pp. 899–900.) In the instant case,
the factual allegations of Rios’s original DFEH charge, i.e., that
Flores was envious of Rios’s pension, cannot reasonably support a
12
claim of discrimination or harassment on the basis of “gender
expression and gender identity as a bisexual woman.” Therefore,
the untimely amended DFEH charge asserting such claims did
not relate back to the original timely DFEH charge.
In sum, the trial court properly held that Rios’s FEHA
claim, as pled in the SAC, is barred by her failure to exhaust her
administrative remedies.4
4 It is an appellant’s burden to show the trial court abused
its discretion in denying leave to amend. (Blank v. Kirwan (1985)
39 Cal.3d 311, 318; T.H., supra, 4 Cal.5th at p. 162.) Rios does
not contend that leave to amend should have been granted
because she is capable of amending her pleading to state a cause
of action. Therefore, the issue of whether the trial court abused
its discretion in denying leave to amend is not before us.
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DISPOSITION
The order of dismissal is affirmed. The Regents shall
recover their appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
DHANIDINA, J.
14