State Personnel Board v. Fair Employment & Housing Commission , 39 Cal. 3d 422 ( 1985 )

LUCAS, J.

I respectfully dissent.

I appreciate and fully share the majority’s worthy concern that adequate remedies be provided to all persons claiming that they have been denied employment because of improper discrimination. But to provide state civil service employees with two administrative forums to air their complaints is excessive and unwise, and unnecessarily strains the state’s already overloaded administrative machinery designed to resolve such disputes.

The State Personnel Board is constitutionally vested with exclusive jurisdiction over the examination and selection of state civil service personnel. (Cal. Const., art. VII.) Enabling legislation within the Civil Service Act provides assurance that civil service hirings are based on merit (see Gov. Code, § 18500; further statutory references are to this code unless otherwise indicated), and precludes discrimination based on age, sex, race, religion, physical handicap and other specified types of discrimination (§ 19700 et seq.). Civil service applicants who feel their rights have been abridged may initiate a complaint, triggering conciliation efforts and, if necessary, formal hearings. (Cal. Admin. Code, tit. 2, §§ 51, 547 et seq.) Judicial review of an adverse board decision is available. (§ 19630 et seq.; Code Civ. Proc., §§ 1085, 1094.5.)

To allow rejected civil service applicants the opportunity to pursue this elaborate review procedure plus, if unsuccessful, the luxury of initiating an entirely new administrative proceeding before the state Fair Employment and Housing Commission, based on identical claims of employment discrimination, gives these applicants an undeserved second bite at the administrative apple. Such a holding can only serve to encourage a multiplicity of administrative proceedings by discontented employment applicants hoping to find some friendly forum to hear their grievances.

The correct constitutional and statutory analysis dispositive of this case was set forth in the now vacated Court of Appeal opinion authored by Presiding Justice Puglia. I adopt the following portions of that opinion to supplement this dissent:

“It is apparent that both the Board and the appellants [Fair Employment and Housing Commission and Department of Fair Employment and Housing], under their respective governing statutes, are charged with enforcing virtually identical substantive standards with respect to discrimination against the physically handicapped. The Civil Service Act prohibits employment discrimination against the physically handicapped unless the particular handicap is ‘job related.’ (§ 19702.) The FEHA prohibits employment discrimination against the physically handicapped unless justified by a ‘bona fide occupational qualification’ (§ 12940). As we see it, a ‘bona fide occupational qualification’ is virtually synonymous with the ‘job related’ standard administered by the Board. Even if the categorical synonymity were not clear, the FEHA further clarifies the essential congruity of the two schemes by providing that an employer may refuse to hire persons with medical or physical handicaps who are unable to or cannot safely perform the duties of the job. (§ 12940.)

“It is true as appellants point out that the appeals to the Board of applicants Fade and Williams were handled as medical rather than physical handicap discrimination appeals. In medical appeals the issues are limited to the existence of the physical condition in question and whether that condition meets the standards of disqualification for employment under the Board’s medical standards for the particular job classification. Appellants represent that their procedures focus directly on the discrimination issue by affording a physically handicapped complainant rejected for employment the opportunity to show that he is in fact able to perform the job in question notwithstanding his disability; furthermore appellants’ hearing assertedly would address the ability of the employer reasonably to accommodate to the complainants’ handicap. However, appellants ignore the availability of a virtually identical remedy in appeals to the Board. By providing for waiver of a medical employment standard ‘subject to proper placement’ within the class, the Board is prepared to give individualized consideration to applicants who are unable to meet the minimum standards of physical fitness preliminarily required for a particular classified position, but who can demonstrate that ‘such waiver would not affect the satisfactory performance of the duties assigned to the specific position’ (see Cal. Admin. Code, tit. 2, § 172.1----)

“Appellants rejoin that the Board did not permit applicants the opportunity to show they could actually perform the duties of a traffic officer. However, there is neither showing nor contention that applicants framed their appeals to the Board as other than medical appeals, i.e., as complaints of discrimination on account of color blindness (§ 19701) or physical handicap (§ 19702), or that they specifically sought waivers of physical or medical standards subject to proper placement within the relevant job classification. (Cal. Admin. Code, tit. 2, § 172.1.) It is incumbent upon the dissatisfied applicant who seeks relief from the Board clearly and specifically to frame the issues on appeal: ‘A complaint of discrimination which cannot be resolved by the appointing power . . . shall be filed with the Personnel Board as an appeal .... [1] Each complaint must be in writing and state clearly the facts upon which it is based, and the relief requested in sufficient detail for the reviewing authority to understand the nature of the complaint and who is involved.’ (Cal. Admin. Code, tit. 2, § 547.1.)

“If the Board failed or refused to hear or erroneously decided properly tendered issues of discrimination or waiver, applicants’ remedy is to seek judicial review of the administrative proceeding (§ 19630 et seq.; Code Civ. Proc., § 1094.5). If claims of discrimination or waiver were not tendered in accordance with the rules of practice before the Board, applicants have no justiciable cause to complain of denial of substantive rights of which, given the opportunity, they failed to avail themselves. [Fn. omitted.]

“Appellants contend they are uniquely empowered to exercise certain remedial powers upon a finding of discrimination which are not given to the Board. Specifically appellants can require an offending employer ‘to cease and desist from ... [a discriminatory] practice and to take such action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, as in the judgment of the commission, will effect the purposes of [the FEHA] ....’(§ 12970.) It cannot be seriously contended, however, that the Board in the present circumstances lacks the authority under the Civil Service Act to compel an employer to refrain from discriminatory employment practices and to cause the hiring of a particular applicant under appropriate circumstances.

“Undaunted, appellants direct our attention to the availability of a right of private action to an aggrieved person under the FEHA (§ 12965, subd. (b)), pointing out there is no cognate judicial remedy under the Civil Service Act. However, appellants fail to mention that the judicial remedy as provided by the FEHA is permitted only in default of agency action where the Department does not file an accusation. In proceedings before the Board, it is the aggrieved person, not the agency, who must initiate formal proceedings by filing a written complaint (Cal. Admin. Code, tit. 2, §§ 63, 547.1). Thus availability of a judicial remedy in the first instance is not only unnecessary, it would be useless since such relief at that stage of proceedings would be precluded by the principle requiring exhaustion of administrative remedies as a prerequisite to judicial review.

“We conclude the administrative procedures available under the Civil Service Act guarantee full and fair opportunity to challenge individual employment decisions with respect to the medically or physically handicapped. Appellants insist, however, that the procedural protections afforded claimants under the FEHA are qualitatively superior to the relatively more informal procedures of the Board. However that may be, we shall not speculate as to the ‘better’ of the two administrative procedures given that those of the Board comport with the requirements of due process of law. (See French v. Rishell (1953) 40 Cal.2d 477, 481 [254 P.2d 26]; Kremer v. Chemical Construction Corp. (1982) 461 U.S. 480-481 [72 L.Ed.2d 262, 279-280, 102 S.Ct. 1883]; City of Hackensack v. Winner [(1980) 82 N.J. 1] 410 A.2d [1146] at p. 1163; Mitchell v. National Broadcasting Co. (1977) 553 F.2d 265, 271.)

“Appellants infer a legislative intent to invest them with concurrent jurisdiction with regard to the subject of the present controversy because of a requirement that the Board, as an employer within the scope of FEHA, maintain and preserve personnel application files for a period of one year (§ 12946) and submit to the Commission affirmative action plans and ethnic statistical data. (§ 19702.5.) Neither duty, however, specifically relates to information regarding the physically handicapped. In fact section 19702.5 refers to data relative to sex, age, and ethnic origin without express mention of physical handicap. These record-keeping requirements, standing alone, do not reflect a legislative intent to dilute the Board’s jurisdiction over employment discrimination against the physically handicapped.

“Appellants argue that their concurrent jurisdiction here is supported by the Board’s own admissions and past practice. [Fn. omitted.] Although subject-matter jurisdiction may never be waived (Burris v. Superior Court (1974) 43 Cal.App.3d 530, 537 [117 Cal.Rptr. 898]; Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 622 [102 Cal.Rptr. 815, 498 P.2d 1063]) and although final responsibility for the interpretation of the law rests with the courts, past and contemporaneous pronouncements and interpretations by administrative officials of their legislative or constitutional authority are accorded considerable weight. (Mooney v. Pickett (1971) 4 Cal.3d 669, 681 [94 Cal.Rptr. 279, 483 P.2d 1231]; City of Los Angeles v. Public Utilities Com. (1975) 15 Cal.3d 680, 696 [125 Cal.Rptr. 779, 542 P.2d 1371]; see also Pacific Legal Foundation v. Brown [(1981)] 29 Cal.3d [168] at pp. 191-192 [172 Cal.Rptr. 487, 624 P.2d 1215].) Nonetheless, these prior statements and practices of the Board are not conclusive of the jurisdictional controversy. The deposition testimony of Board members indicates at most a 20-year joint effort, since the adoption of the predecessor to the FEHA, of the Board and appellants to utilize all the state’s resources to eradicate discrimination in employment. Over the years, the Board generally has cooperated with the Commission and Department in cases involving allegations of discrimination in state civil service employment and has viewed the Department’s investigatory activities as supplementary to its own. Yet the Board never has expressed any position with regard to concurrent jurisdiction in the specific area of discrimination against the physically handicapped despite the fact that a prohibition against such discrimination was added by statute in 1973. (Stats. 1973, ch. 1189, § 6.) Furthermore, in practice, the Department has admitted in discovery that it has never served the Board with accusations of employment discrimination prior to the three accusations filed on behalf of the applicants herein. Nor have appellants ever issued any finding that the Board has engaged in discrimination.

“We are satisfied that the Board has the greater expertise with respect to determination whether a disqualifying physical condition is job related or whether an individual can satisfactorily perform the duties of a particular job notwithstanding an otherwise disqualifying physical disability. In relation to appellants, the Board’s superior expertise extends across the entire realm of civil service classifications including specifically the position of traffic officer. Virtually every job requires some minimum standard of physical fitness or, stated in another way, the absence of that level of physical incapacity which would preclude adequate performance of the work. While employment standards may not lawfully take into account individual characteristics such as race, color, or national origin, establishment of a certain minimum level of physical capacity is essential in the formulation of legitimate job standards. In the latter context, discrimination occurs only when a disqualifying physical condition is not job related (a bona fide occupational qualification) and therefore would not render an applicant unable to perform the duties of the position adequately and safely. Thus the test for discrimination against the physically handicapped is inherently and exclusively involved with the setting of minimum standards of capacity to perform and with ability actually to perform in particular job classifications. These matters are uniquely within the competence of the Board and not of the appellants. Specifically to the point, the Board has the expertise to assess the duties of a state traffic officer, prescribe the minimum qualifications required safely and effectively to perform those duties and determine ability so to perform in individual cases. The appellants have neither responsibility nor expertise in this area.

“In order to discharge its constitutional obligation to classify all positions in the civil service according to comparability (Cal. Const., art. VII, § 3, subd. (a)), the Board must evaluate the duties and responsibilities of and determine the levels of fitness necessary to performance in each class of position (§§ 18500, 18801); the Board must establish minimum standards of fitness and qualification for each position (§ 18931). In order to insure appointments are governed by the merit principle, the Board must examine applicants to determine their qualifications, fitness and ability to perform the duties of the class in which they seek employment (art. VII, § 1, subd. (b); § 18930). The examination may, where appropriate, test the physical fitness of the applicant {ibid.) and the Board may refuse to certify for appointment anyone who is so disabled as to be rendered unfit to perform in the class to which he seeks appointment (§ 18935, subd. (c)).

“Development of job performance standards and assessment of an applicant’s ability to perform a civil service job are under the Constitution exclusively within the province of the Board. They are inextricably intertwined with the Board’s exclusive constitutional prerogative to prescribe classifications (Stockton v. Department of Employment (1944) 25 Cal.2d 264, 272 [153 Cal.Rptr. 741]; Noce v. Department of Finance (1941) 45 Cal.App.2d 5, 11 [113 P.2d 716]) and its constitutional authority over appointment and examination all of which are at the heart of its constitutional power to administer the merit principle (Pacific Legal Foundation, supra, at pp. 183-184, 187, 192-195). Eminently a part of these powers is the authority to determine whether an applicant possesses minimum physical capacity necessary to the demands of the particular employment, either by application of general standards of fitness or by individualized physical testing against job performance requirements.

“Relying on a hypothetical example in Pacific Legal Foundation v. Brown, supra, 29 Cal.3d at page 185, appellants claim that the Board’s constitutional jurisdiction is solely confined to vindicating the merit principle against political influence. Such a construction is unduly narrow, as the merit principle also necessarily contemplates vindication against corruption, disloyalty, subversion, and commonplace inefficiency, ineptitude and indolence in the classified service. (See Pacific Legal Foundation, supra, at p. 182.) Whatever the precise scope of the merit principle, it cannot be defined simply in terms of a negative standard, i.e., freedom from political influences, if it is to be administered by other than subjective criteria. The merit principle is the antithesis of political influence and to administer its acknowledged constitutional powers to insulate state employment from political influence, the Board must devise a set of objective criteria which are intrinsically job related, thus defining and giving substantive content to the merit principle. Standards of physical fitness and ability physically to perform are essential to the formulation of such objective criteria just as obviously as race, color, party affiliation or consanguinity with high officials are not. Imposition of appellants’ standards applicable to the physically handicapped would, to that extent, inevitably undermine the uniform and objective application of the merit principle in state employment, the stewardship of which is confided exclusively by the Constitution to the Board.

“The Board and appellants seek to occupy the same jurisdictional space in the context of a concrete controversy. Appellants claim the right to ‘examine the qualifications [for employment] set by the Board to determine whether they are bona fide, and then give handicapped applicants the opportunity to demonstrate an ability to perform bona fide requirements. ’ The appellants’ assertion of jurisdiction over these matters poses a present total and fatal conflict with the Board’s constitutional powers of classification, examination and appointment (Pacific Legal Foundation, supra, at p. 181). Where such a conflict exists, the constitutionally derived power of the Board must prevail. (See Waters v. Pacific Telephone Co. (1974) 12 Cal.3d 1,11 [114 Cal.Rptr. 753, 523 P.2d 1161].)”

I would affirm the judgment enjoining appellants from further prosecuting the accusations filed by real parties.