Kuigoua v. Dept. of Veteran Affairs ( 2024 )

Filed 4/17/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ARNO PATRICK KUIGOUA, B323735
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. 20STCV09073
v.
DEPARTMENT OF VETERAN
AFFAIRS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Stephen T. Morgan, Judge. Affirmed.
The Guha Law Firm and Ranojoy Guha for Plaintiff and
Appellant.
Tiffany L. King, Deputy Secretary and Chief Counsel,
Andia Farzaneh, Staff Counsel, and Samantha Lewis-Carden,
Senior Staff Counsel for Defendant and Respondent.
____________________
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. Unspecified citations are to the
Government Code.
I
In May 2015, Kuigoua started working for the California
Department of Veterans Affairs, which we call the Veterans
Department, or simply the Department.
A
Kuigoua worked for the Veterans Department as a
registered nurse at the Knight Veterans Home. The Knight
Home, as we will refer to it, is in Lancaster, California.
Kuigoua’s employment with the Department ended in
October 2018. The Department fired him after determining he
sexually harassed women and delivered substandard care that
injured patients.
Kuigoua appealed his termination to the State Personnel
Board, which, after a six-day hearing, rejected his appeal. The
administrative law judge ruled Kuigoua’s dismissal was just and
proper. Unsuccessful in altering this ruling were Kuigoua’s
petition for rehearing, his petition for writ of mandate, his appeal
of the writ denial, and his 2022 petition for review by the
California Supreme Court.
2
In short, from 2018 to 2022, Kuigoua attacked the
Department’s 2018 decision to fire him, but his attacks failed.
B
Just before his State Personnel Board hearing, on April 2,
2019, Kuigoua filed an administrative charge of employment
discrimination. He filed this charge concurrently with the
California Department of Fair Employment and Housing and the
federal Equal Employment Opportunity Commission. (See Clark
v. Superior Court (2021) 62 Cal.App.5th 289, 308, fn. 21 (Clark)
[work sharing agreements between the Equal Employment
Opportunity Commission and the Department of Fair
Employment and Housing mean complaints filed with one agency
are filed with the other as well].)
We describe Kuigoua’s charge, which is central to this
appeal.
Kuigoua filled out an official one-page form that allowed
claimants to present their charge either to the Equal
Employment Opportunity Commission, or to the “FEPA” (local
Fair Employment Practices Agency), or both. Kuigoua checked
the box for the Equal Employment Opportunity Commission.
The Commission investigated this charge. We refer to Kuigoua’s
completed form as the Commission Form.
One section of the Commission Form required
complainants to identify the nature of their complaints. It was
titled “DISCRIMINATION BASED ON,” and it directed
complainants to “Check appropriate box(es).” Kuigoua checked
the boxes for “SEX” and “RETALIATION.” He checked no other
box. In particular, Kuigoua did not check boxes for
discrimination on the basis of race, color, religion, national origin,
age, disability, genetic information, or “other (specify).”
3
In the section titled “DATE(S) DISCRIMINATION TOOK
PLACE,” Kuigoua wrote the earliest date was June 12, 2018 and
the latest date was October 1, 2018.
Below these areas on the form is a section titled “THE
PARTICULARS ARE (If additional paper is needed, attach extra
sheet(s)):.”
In this area, Kuigoua wrote the following, without an
attachment. We add italics for emphasis.
“I. On or about 11 May 2015, I began my employment with
the California Department of Veteran Affairs as a Registered
Nurse, and my last position with the company was Registered
Nurse. On or about 12 June 2018, and again on 15 July 2018 I
filed an internal complaint. Beginning on or about 12 June 2018
and continuing to 01 October 2018, I was subjected to different
terms and conditions of employment by Manager Julian Manalo,
including but not limited to; being denied any available overtime.
From in or around 20 August 2018 to on or about 01 October
2018, I was issued written discipline. Other similarly situated
co-workers, not of my protected class, were not disciplined for
same or similar reasons. I informed Respondent of the disparate
treatment; however, no action was taken to investigate or to
promptly correct. On 01 October 2018, I was discharged.
“II. I was informed by Respondent that the reason for my
discharge was due to me sexually harassing two other employees
and failing to show a concern for patient care.
“III. I believe I was discriminated against because of my sex
(Male), and I was retaliated against for engaging in a protected
activity, in violation of Title VII of the Civil Rights Act of 1964, as
amended.”
Kuigoua signed the form on April 2, 2019.
4
To summarize, Kuigoua’s Commission Form reported that,
during three and a half months in 2018, someone discriminated
against Kuigoua on the basis of Kuigoua’s male gender. Kuigoua
also suffered retaliation, apparently for reporting this
discrimination. The retaliation took the form of denying Kuigoua
the opportunity to earn overtime pay. The Department failed to
ameliorate these problems and finally discharged Kuigoua
altogether. Kuigoua’s direct antagonist was Julian Manalo.
An equal opportunity officer named Robert Hennig
investigated these charges.
Hennig reported that Manalo was a supervising
administrator at the Veterans Home in West Los Angeles.
The West Los Angeles veterans facility is some 60 miles
south of the Knight Home for veterans in Lancaster.
Hennig found no evidence Kuigoua had suffered
discrimination because of his male gender. Neither had Kuigoua
been subjected to retaliation for engaging in protected activity.
The Department of Fair Employment and Housing, having
received notice of the complaint from the Commission, gave
Kuigoua a right-to-sue notice.
C
On March 5, 2020, Kuigoua sued the Veterans Department
in state court on state statutory claims. His second amended
complaint is the operative complaint.
This complaint asserted four causes of action. The first is
“Unlawful Gender, Sex, and/or Sexual Orientation
Discrimination and Harassment (Cal. Gov. Code § 12900, et
seq.).” The second is “Unlawful Race, Color, and/or National
Origin Discrimination and/or Harassment (Cal. Gov. Code §
12900, et seq.).” Third is “Failure to Prevent Unlawful
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Discrimination and/or Harassment Based on Gender, Sex, Sexual
Orientation, Race, Color, and/or National Origin (Cal. Gov. Code
§ 12900, et seq.).” The fourth claim is “Retaliation Based on
Gender, Sex, Sexual Orientation, Race, Color, and/or National
Origin (Cal. Gov. Code § 12900, et seq.).”
Kuigoua’s factual allegations in this complaint cover about
eight pages. We first summarize, and then describe in more
detail, these allegations.
Kuigoua’s operative complaint asserts four theories.
1. He suffered sexual harassment.
2. He suffered harassment based on his race or on his
immigrant status.
3. His employer failed to prevent this sexual and racial
harassment.
4. The harassers retaliated against him after he lodged
internal complaints against them.
Kuigoua’s factual allegations supported his claims.
Kuigoua alleged that, during the roughly three and a half
years that he worked at the Knight Home, two people in the
maintenance department oppressed him. These people were Mac
Smith and Marcelo Quintua.
Mac Smith was working at the Knight Home when Kuigoua
arrived. Smith began taunting and threatening Kuigoua on a
regular basis soon after Kuigoua started in 2015. Smith called
Kuigoua “lazy,” “monkey,” and “Uncle Tom,” said he should “go
back to Africa,” and accused him and other immigrants of not
being “real Americans” and coming to the United States only to
“steal jobs.” Smith told Kuigoua he would “fuck [him] up” and
threatened to report him for unknown reasons. Smith retired in
November 2017.
6
Marcelo Quintua was the Chief of Plant Operations at the
Knight Home throughout Kuigoua’s employment. A few months
after Kuigoua was hired, Quintua began making gestures that
initially confused Kuigoua, but that he came to understand were
veiled romantic overtures. Kuigoua asked Quintua to stop this
behavior and told Quintua he was not gay, but Quintua persisted.
In March 2018, Kuigoua met with investigators from the
Equal Employment Opportunity Commission who were looking
into allegations by female employees against Smith. Kuigoua
told the investigators about his own problems with Smith. No
one followed up with him about this revelation.
In April or May 2018, Kuigoua responded to a resident’s
maintenance request. He encountered Quintua, who yelled and
cursed at Kuigoua, threatened to have him fired, and followed
after Kingoua to prolong the verbal assault.
Kuigoua had three meetings with Elvie Ancheta, the
administrator in charge at the Knight Home during the latter
part of Kuigoua’s tenure. Kuigoua met with Ancheta and other
administrators at the Knight Home concerning his struggles with
Smith and Quintua. At each meeting, Ancheta said she would do
something, either by investigating further and speaking with
Quintua or by holding a group meeting to mediate the problem.
These solutions never materialized.
On April 26 or June 4, 2018, Kuigoua gave Ancheta a
written summary of his allegations concerning Quintua and told
her that he wanted to file a formal internal complaint. According
to Kuigoua, Ancheta did not follow up with him or initiate any
internal procedure, to his knowledge.
Both Smith and Quintua continued to make Kuigoua’s life
difficult for the rest of his employment at the Home. Quintua
7
called Kuigoua rude names and kept propositioning him. Smith
threatened Kuigoua, saying “snitches get stitches.” Kuigoua told
Ancheta about Smith’s continuing threats, but Ancheta said she
did not want to be involved in any investigation of Smith.
Kuigoua’s judicial complaint stated nothing about gender
discrimination against males at the West Los Angeles facility.
Now the site of the oppression was 60 miles north, in Lancaster.
Neither was there mention of antagonist Manalo. The retaliation
now was for complaining to Ancheta about harassment from
Smith and Quintua: three people Kuigoua omitted from his
Commission Form. The time frame was different: over the three-
year interval from 2015 to 2018, rather than the three and a half
months in 2018.
D
Defendant Veterans Department responded to Kuigoua’s
lawsuit. The Department noted the lawsuit was about alleged
events different from those Kuigoua alleged in his Commission
Form. This shift, the Department protested, had cheated anti-
discrimination agencies of notice and an opportunity to
investigate the dispute that Kuigoua brought to the trial court.
The Department moved for summary judgment on the basis
Kuigoua had not exhausted his administrative remedies.
The trial court granted the Department’s motion. The
court’s single-spaced eight-page statement of decision carefully
applied the law to the disparity between Kuigoua’s factual
allegations in his administrative and judicial complaints. The
court concluded Kuigoua’s two accounts were unrelated, and an
investigation of the former claims would not have uncovered the
situation Kuigoua alleged in his judicial complaint. The trial
8
court entered judgment for the Department and against Kuigoua.
Kuigoua appealed this judgment.
II
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.
A
The purpose of the 1992 and 1993 amendments to the
summary judgment statute was to liberalize the granting of
summary judgment motions. This remedy is no longer called
disfavored. Summary judgment is now recognized as a
particularly suitable means to test the sufficiency of the
plaintiff’s or defendant’s case. Appellate courts take the facts
from the record that was before the trial court. We
independently review the trial court’s decision, considering all
the evidence in the moving and opposing papers except that to
which objections were made and sustained. (Garcia v. D/AQ
Corp. (2020) 57 Cal.App.5th 902, 907.) We independently review
whether Kuigoua exhausted his administrative remedies.
(Guzman v. NBA Automotive, Inc. (2021) 68 Cal.App.5th 1109,
1115-1116 (Guzman).)
Employees like Kuigoua who wish to sue under the Fair
Employment and Housing Act must exhaust the administrative
remedy that statute provides. They do so by filing a complaint
with the Department of Fair Employment and Housing. Filing
this administrative complaint is a mandatory prerequisite to
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suing in court. (Guzman, supra, 68 Cal.App.5th at p. 1117; see
Clark, supra, 162 Cal.App.5th at p. 308, fn. 21.)
The statute establishes procedures by which aggrieved
employees are to file this notice. Section 12960, subdivision (c),
provides: “Any person claiming to be aggrieved by an alleged
unlawful practice may file with [Department of Fair Employment
and Housing] a verified complaint, in writing, that shall state the
name and address of the person, employer, labor organization, or
employment agency alleged to have committed the unlawful
practice complained of, and that shall set forth the particulars
thereof and contain other information as may be required by the
department.”
Once the agency receives this complaint, it investigates the
alleged unlawful practice and decides whether it can resolve the
matter by conference, conciliation, and persuasion. If these
measures fail, the agency may issue an accusation. If the agency
decides against issuing an accusation, it issues a right-to-sue
letter to the aggrieved person. (Guzman, supra, 68 Cal.App.5th
at p. 1117.)
“Exhausting administrative remedies” refers to this process
of notifying the agency of employment problems and giving it the
option of using conciliation as a tool. This allows the agency a
chance to investigate and solve the problem short of court.
Legislators favored conciliation as the method for resolving
disputes and eliminating unlawful employment practices.
Successful agency conciliation eases the burdens on courts. It
likewise maximizes the use of agency expertise and capability to
order and monitor corrective measures. Conciliation provides a
more economical and less formal means of resolving disputes.
Even in cases appropriate for judicial resolution, the exhaustion
10
requirement can lead to settlement, can eliminate unlawful
practices, and can mitigate damages. (Rojo v. Kliger (1990) 52
Cal.3d 65, 83 & 84, fn. 11.)
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. (Guzman, supra, 68 Cal.App.5th at p.
1117.) 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. (Okoli v. Lockheed Technical
Operations Co. (1995) 36 Cal.App.4th 1607, 1615 (Okoli).)
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.
B
Kuigoua loses because his judicial claims are not like, and
are not reasonably related to, those in his administrative
complaint. Nor would an agency investigation based on
Kuigoua’s administrative complaint necessarily have uncovered
the abuses he described in his operative complaint.
We explain each point.
Kuigoua’s claims in court were not like his claims in the
administrative complaint. The administrative complaint focused
on discrimination against men as well as retaliation for
Kuigoua’s internal complaints. The reasonable interpretation is
these internal complaints were about discrimination against
men, for Kuigoua identified no other specific basis for a
complaint. Kuigoua’s identified antagonist was Julian Manalo.
11
The stated interval was three and a half months in 2018. The
scene was the veterans facility in West Los Angeles, which was
where Manalo was in charge. Nothing in the record connects
Manalo with Lancaster.
Kuigoua’s operative complaint was unrelated to the claims
Kuigoua put in his Commission Form. Julian Manalo
disappeared, to be replaced by Mac Smith and Marcelo Quintua.
The old claim about sex discrimination against men disappeared,
to be replaced by claims of racial and national origin
discrimination by Smith and sexual harassment by Quintua. The
time frame changed from three and one half months in 2018 to
three years, reaching back before Smith’s November 2017
retirement. The venue moved 60 miles north.
These claims in court thus were not like, or reasonably
related to, the claims in the Commission Form. Kuigoua
“concedes that he did not mention anything about race or
national origin discrimination in his administrative complaint,
nor did he check the boxes for ‘race’ or ‘national origin.’ ” With
candor, Kuigoua admits this omission “certainly does not help”
his case.
Turning now to the second part of the exhaustion test, an
administrative investigation would not have uncovered the
conduct that was the focus of Kuigoua’s operative complaint.
Investigators working off the Commission Form would have
started with Kuigoua’s identified antagonist: Julian Manalo.
The Department would not have reasonably discovered Kuigoua’s
alleged issues with Smith and Quintua while investigating the
facts on the Commission Form. The one person Kuigoua
mentioned on the form -- Manalo -- was not present at the Knight
Home, which was the only place Smith and Quintua worked. The
12
investigation thus would have begun in West Los Angeles, where
Manalo did work, and would have ended there, for no particular
in the Commission Form would have clued in the investigator to
the alleged events in Lancaster: Quintua’s alleged sexual
harassment or Smith’s alleged racial epithets.
In fact, this is how the investigation did work: it never
uncovered anything about Quintua or Smith. Investigator
Hennig took note of Manalo’s supervision of the West Los Angeles
facility. Hennig ran down Kuigoua’s leads in the Commission
Form. Hennig found nothing amiss.
An investigation that actually found no uncharged
incidents would not “necessarily uncover other incidents that
were not charged.” (Okoli, supra, 36 Cal.App.4th at p. 1615,
italics added.)
Kuigoua’s opening brief concentrated on the decision in
Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1061,
which held “that failure to name Gates, Spencer and Taylor in
the administrative complaint is fatal to the right to bring an
action against them in the trial court.” If anything, the case’s
language is more helpful to the Department than to Kuigoua.
(See ibid. [“For a claimant to withhold naming of known or
reasonably obtainable defendants at the administrative
complaint level is neither fair under the Act in its purpose of
advancing speedy resolutions of claims nor fair to known, but
unnamed individuals, who at a later date are called upon to
‘personally’ account in a civil lawsuit without having been
afforded a right to participate at the administrative level.”].)
DISPOSITION
We deny Kuigoua’s request for judicial notice as irrelevant,
affirm the judgment, and order each side to bear their own costs
13
on appeal. (Pollock v. Tri-Modal Distribution Services, Inc.
(2021) 11 Cal.5th 918, 947-951.)
WILEY, J.
We concur:
GRIMES, Acting P. J.
VIRAMONTES, J.
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