Wassmann v. South Orange County Community College Dist.

Filed 6/12/18; Certified for Publication 6/21/18 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
CAROL E. WASSMANN,
Plaintiff and Appellant, G053411
v. (Super. Ct. No. 30-2013-00692313)
SOUTH ORANGE COUNTY OPINION
COMMUNITY COLLEGE DISTRICT et
al.,
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County, Frederick
P. Aguirre, Judge. Affirmed. Request for Judicial Notice. Granted in part and denied in
part. Motion to strike Appellant’s opening brief. Denied.
Carol E. Wassmann, in pro. per., for Plaintiff and Appellant.
Walsh & Associates, Dennis J. Walsh and Matthew C. Wallin for
Defendants and Respondents South Orange County Community College District, Karima
Feldhus, Robert Brumucci and Glenn Roquemore.
Schwartz, Steinsapir, Dohrmann & Sommers, Michael R. Feinberg and
Amy Moolin Cu, for Defendants and Respondents Lewis Long and Katherine
Schmeidler.
* * *
INTRODUCTION
The South Orange County Community College District (the District)
dismissed Carol E. Wassmann from employment as a tenured librarian at Irvine Valley
College (IVC) in April 2011. Several years later, Wassmann obtained a right to sue
notice from the California Department of Fair Employment and Housing (DFEH) and
brought this lawsuit against the District, Karima Feldhus, Robert Brumucci, Glenn
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Roquemore, Lewis Long, and Katherine Schmeidler. Wassmann, who is
African-American, alleged causes of action for racial discrimination, age discrimination,
and harassment in violation of the California Fair Employment and Housing Act (FEHA)
(Gov. Code, § 12900 et seq.), intentional infliction of emotional distress, and two other
causes of action not relevant here.
The trial court granted two motions for summary judgment, one brought by
the District Defendants and the other brought by Long and Schmeidler, on the ground the
FEHA claims were barred by res judicata, collateral estoppel, or failure to exhaust
administrative remedies, and the intentional infliction of emotional distress cause of
action was barred by res judicata, collateral estoppel, or the statute of limitations.
We affirm. After Wassmann was dismissed from employment and before
she brought this lawsuit, a five-day-long administrative hearing was conducted in
accordance with Education Code section 87660 et seq., which sets out a comprehensive
scheme governing “the evaluation of, the dismissal of, and the imposition of penalties on,
community college faculty.” (Ed. Code, § 87660.) After hearing testimony, receiving
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We refer to the District, Feldhus, Brumucci, and Roquemore collectively as the District
Defendants. All defendants when referred to collectively are called Defendants.
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documentary evidence, and reviewing written arguments, the administrative law judge
issued a 20-page decision upholding the District’s decision and determining there was
cause for dismissing Wassmann. The trial court upheld the administrative law judge’s
decision by denying Wassmann’s petition for writ of mandate.
The administrative law judge’s decision and the trial court judgment
upholding it are significant because, under principles of res judicata and exhaustion of
judicial remedies, they are binding on the issue of cause for dismissal and therefore
dispositive of Wassmann’s FEHA causes of action arising out of dismissal from
employment. To the extent Wassmann’s FEHA claims sought recovery for injuries other
than loss of employment, those claims are barred for failure to exhaust administrative
remedies; that is, Wassmann did not file a complaint with the DFEH within one year of
the date on which the alleged unlawful acts were undertaken. Wassmann’s cause of
action for intentional infliction of emotional distress, a common law claim for which
Wassmann was not required to obtain a right to sue notice from the DFEH, was barred by
the two-year statute of limitations of Code of Civil Procedure section 335.1.
FACTS
I.
Background
The District employed Wassmann as a public service librarian at IVC from
August 2005 until April 28, 2011. Feldhus, the Dean of Liberal Arts, became
Wassmann’s supervisor in 2009. Jayne Sinegal, who is African-American and older than
Wassmann, was the library department chair. Ettie Graham was the District’s director of
human resources.
While she was employed by the District, Wassmann was a member of the
South Orange County Community College District Faculty Association (the Association),
which is an affiliate of the Community College Association/California Teachers
Association. Long and Schmeidler are District employees and were members and
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officers of the Association. As Association officers, Long and Schmeidler represented
Wassmann in dealing with matters arising under the Association’s master agreement with
the District.
II.
July 20, 2009 Incident and July 30, 2009 Letter
In a letter to Wassmann dated July 30, 2009, Feldhus asserted that on July
20, Wassmann had gone to Feldhus’s office “in an agitated state” and “loudly” had stated
that Sinegal omitted Wassmann from an e-mail. Feldhus asserted that Wassmann had
written “What a bitch!!!” across the top of a print copy of the e-mail. Wassmann testified
she had written, “What a witch.” In the July 30 letter, Feldhus described Wassmann’s
conduct as “unprofessional, discourteous, and unacceptable” and stated, “Let this letter
serve as notice to you that I absolutely will not condone your disrespectful treatment of
your co-workers. You must stop this unprofessional behavior immediately.”
In August 2009, Schmeidler met with Wassmann to discuss the July 30
letter. Wassmann asked Schmeidler to talk to Feldhus and get her to stop mistreating
Wassmann. Wassmann testified at her deposition that she knew Feldhus’s treatment of
her was based on race because Feldhus is from Algeria, Feldhus looks down upon people
of darker skin color, and “[a] person of my shade from [Feldhus’s] country is considered
a slave.” Wassmann testified at her deposition that because Feldhus is Algerian and
Caucasian, she treated African-Americans as either “field slaves” or “house slaves.”
Schmeidler thereafter met with Feldhus to discuss the July 30 letter.
III.
Notice of Unsatisfactory Performance
and Unprofessional Conduct
On September 11, 2009, Feldhus issued Wassmann a “Notice of
Unsatisfactory Performance and Unprofessional Conduct” (the September 2009 Notice).
The September 2009 Notice identified areas of work deficiencies and unprofessional
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conduct, including: (1) Wassmann was not in her assigned work areas according to her
schedule; (2) at times when Feldhus tried to locate Wassmann, she failed to respond to
knocks on her office door and walked past Feldhus without acknowledging her;
(3) Wassmann e-mailed an overdue work schedule to Feldhus that contained errors; and
(4) during department meetings, Wassmann sat with her head down, made no eye contact
with other department members, and showed no interest in the meetings.
The September 2009 Notice directed Wassmann to report to her work
locations as scheduled, keep her office door open during work hours, communicate with
faculty, staff, administrators, and students in a professional manner, refrain from hostile
behavior, participate in department meetings, and follow established library procedures.
On receiving the September 2009 Notice, Wassmann met with Schmeidler
and asked to have it removed from her personnel file. Schmeidler explained to
Wassmann that in order to accomplish that, Wassmann would have to file a grievance
and identify precisely which allegations in the September 2009 Notice that she believed
were inaccurate. Wassmann and Schmeidler met with Feldhus on September 18. After
the meeting, Schmeidler worked with Wassmann to prepare a grievance. Ultimately,
Wassmann submitted a “Rebuttal” to the September 2009 Notice.
IV.
Incidents of Unprofessional Conduct and Unsatisfactory
Performance, September 2009 through March 2010
Wassmann failed to attend library staff meetings from September 16, 2009
to March 23, 2010 and, as a consequence, missed important updates about the
department. In December 2009, Sinegal asked Wassmann to participate in interviews for
a part-time librarian position. Wassmann refused, claiming she did not have the time.
Wassmann sent e-mails to Sinegal that were rude and unprofessional. Wassmann failed
to fulfill “flex” requirements (activities in addition to teaching, classroom preparation,
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and office hours) by not attending a January 7, 2010 school meeting. Wassmann also
submitted her spring schedule in an incorrect format.
On January 26, 2010, Sinegal assigned Wassmann the task of conducting a
bibliographical instruction during a shift at the reference desk. Wassmann refused the
task and asked a colleague to cover the instruction. At her deposition, Wassmann
testified she believed she could turn down a request from the department chair to teach
the class. Wassmann also testified one reason for turning down the request was that
Sinegal’s daughter was going to be a student in the class.
On February 8, 2010, Feldhus and Graham went to Wassmann’s office to
speak with her about a nondisciplinary matter. Feldhus and Graham knocked on
Wassmann’s locked office door. Feldhus advised Wassmann this was a nondisciplinary
meeting. Wassmann opened the door, stated, “I’ll be right there,” closed the door, and
did not come out. Wassmann called Feldhus’s secretary and asked her to leave messages
for Feldhus that Wassmann would not meet without a union representative. Feldhus,
after receiving the message from her secretary, called Schmeidler and invited her to the
meeting. Wassmann allowed Schmeidler into her office and they spoke for about 10
minutes while Feldhus and Graham waited outside.
Wassmann and Schmeidler met with Feldhus and Graham to discuss
Wassmann locking her office door. Feldhus later directed Wassmann to post a sign on
her closed door stating that Wassmann was inside and available during normal working
hours. Wassmann did not post the sign but instead would put up a small label stating the
“door is unlocked.”
In September 2009, Feldhus had assigned Wassmann the project of
updating the library’s audio-visual collection. On February 9, 2010, Feldhus observed
Wassmann working on the audio-visual collection project. According to Feldhus,
Wassmann demonstrated a lack of understanding of the project and a lack of a plan for
completing it, and failed to use staff for the project, as she had been directed to do.
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Feldhus learned at a staff meeting on February 9, 2010, which Wassmann did not attend,
that Wassmann had not made any significant progress on the assignment. Feldhus
informed Wassmann that Feldhus and Sinegal were going to devise an action plan for the
project and instructed Wassmann not to do anything further until she heard from Feldhus.
Wassmann responded with an e-mail stating, “By rights shouldn’t I be included in this
planning process? I am a faculty member.” Wassmann sent an e-mail to another faculty
member asking for input on the audio-visual assignment. Feldhus again directed
Wassmann to do nothing further on the assignment. Feldhus viewed Wassmann’s actions
as rude, disrespectful, and unprofessional.
On February 10, 2010, Wassmann received a written performance
evaluation review from Feldhus. In five areas, Wassmann’s performance was rated as
“Requires Improvement,” which means “Faculty member performs below professional
standards.”
Wassmann met with Feldhus and Schmeidler on February 12, 2010 to
discuss the performance evaluation review. Wassmann prepared a draft response to the
performance evaluation review; Schmeidler reviewed the draft and proposed several
changes, posed questions, and inserted comments. Wassmann incorporated Schmeidler’s
changes into the draft response and e-mailed the revised draft to Schmeidler. Schmeidler
reviewed Wassmann’s revised draft, proposed more changes, posed questions, and
inserted comments into the document for Wassmann to review.
On February 22, 2010, Feldhus reminded Wassmann by e-mail of the
policy that she needed to notify the circulation desk of her whereabouts if she stepped
away from the reference desk. On the same day, Wassmann left the reference desk, but,
rather than contact the circulation desk, asked Sinegal to cover for her. Sinegal told
Wassmann that she did not need to ask for coverage, but only had to notify the circulation
desk of leaving the reference desk. Wassmann became agitated, did not notify the
circulation desk and, instead, put up a sign saying she would be away.
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The next day, Wassmann met with Feldhus, Graham, and Schmeidler to
discuss issues regarding Wassmann’s office door and the status of the audio-visual
project. Immediately after the meeting, Graham e-mailed Wassmann a link to the
District’s harassment policy and complaint procedure and a different link to the District’s
discrimination complaint form.
Wassmann was routinely late with submitting her required monthly reports.
She did not submit reports for December 2009 and January 2010 until March 1, 2010.
She was absent from work five days in August 2009, 2.5 days in September 2009, five
days in October 2009, three days in December 2009, 2.5 days in January 2010, 4.5 days
in February 2010, and 2.5 days in March 2010.
V.
The Notice to Correct Deficiencies
On March 29, 2010, IVC President Glenn Roquemore issued Wassmann a
“Notice to Correct Deficiencies – Unsatisfactory Performance and Unprofessional
Conduct” pursuant to Education Code sections 87732 and 87734 (the Notice to Correct).
The Notice to Correct addressed 18 events deemed to constitute unsatisfactory
performance or unprofessional conduct by Wassmann and was supported by 32 exhibits.
The Notice to Correct reiterated the issues previously identified in the September 2009
Notice and added others, including Wassmann’s: (1) failure to attend staff meetings;
(2) refusal to assist with job interviews; (3) failure to satisfy “flex” requirements that
were part of the collective bargaining agreement; (4) performance on the audio-visual
assignment; (5) refusal to meet with Feldhus and Graham on February 8 without a union
representative; (6) failure to place the proper notice on her door when it was shut;
(7) failure to notify the circulation desk when leaving her post at the reference desk;
(8) routine submission of late monthly reports; (9) use of the wrong format for the spring
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schedule; (10) excessive absences from work; and (11) continued discourteous,
disrespectful, and insubordinate behavior toward Sinegal.
After receiving the Notice to Correct, Wassmann understood that her
employment could be terminated if she did not improve her job performance. She
testified at her deposition she believed all but two issues (incorrect formatting of
documents and untimely schedules) identified in the Notice to Correct were “fabricated,”
she did not change her attitude after receiving the Notice to Correct because “[t]here
wasn’t anything wrong with my attitude,” and she continued to perform her job duties in
the same manner as she had done before receiving the Notice to Correct.
VI.
Incidents of Unprofessional Conduct and Unsatisfactory
Performance, April through October, 2010
In early April 2010, Feldhus asked Wassmann to assist in creating a survey
for students using the reference desk. Wassmann refused to meet with Feldhus without a
union representative. Feldhus informed Wassmann that a union representative was not
necessary because the meeting was not disciplinary; however, Wassmann still refused to
meet with Feldhus.
On April 12, 2010, Wassmann received an e-mail from Feldhus requesting
to meet with her the next day regarding her “continued insubordinate behavior.” Feldhus
advised Wassmann to bring her union representative because the meeting was to be
disciplinary in nature. Wassmann forwarded the e-mail to Schmeidler that same day, and
Schmeidler responded by asking Wassmann to come by her office and meet with her
separately before their meeting with Feldhus. Wassmann met with Schmeidler on April
13 and discussed Feldhus’s expectations of her. Wassmann and Schmeidler then met
with Feldhus and Graham. Feldhus told Wassmann she needed to carry out assigned
tasks to the best of her ability and was required to meet with Feldhus or Sinegal to
discuss assignments.
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Feldhus informed Wassmann she would be observing Wassmann on May
17 for purposes of an evaluation in connection with the Notice to Correct. During the
evaluation, Wassmann refused directives about keeping her door closed and posting
office hours, and did not produce a course syllabus that Feldhus had requested on two
prior occasions. Later that day, Wassmann left the reference desk without informing
anyone. After waiting 10 minutes for Wassmann at the reference desk, Feldhus went to
Wassmann’s office. There was a label by the door saying “door is unlocked,” but when
Feldhus tried to open the door, it was locked and the lights inside were off. Wassmann,
who was in her office, opened the door a crack, said “just a moment,” then tried to shut
the door in Feldhus’s face.
In May 2010, there was another incident in which Wassmann became angry
when speaking to Feldhus about Sinegal. In August, Wassmann attended a staff meeting
but sat in the back, wore sunglasses, and did not participate. Wassmann sent another
disrespectful e-mail to Sinegal, failed to fill out the proper form for taking time off, and
refused to correct inaccuracies in her fall schedule. On August 30, Feldhus again had to
direct Wassmann to keep her office door open during work hours. Nonetheless, on
September 24, another IVC professor found Wassmann’s door closed.
In late September 2010, Feldhus informed Wassmann that Feldhus would
be evaluating her on October 5. Wassmann did not want to be evaluated on October 5
and went home sick that day. Feldhus notified Wassmann the evaluation would be
conducted on October 6 instead. When Feldhus went to evaluate Wassmann on October
6, she was not at the reference desk, her assigned workstation. When Feldhus found
Wassmann about 15 minutes later, Wassmann loudly announced, in front of students,
“I’m not doing it today.” Feldhus asked Wassmann to lower her voice because students
were listening. Wassmann again loudly announced “I’m not doing it today” and asked to
reschedule the evaluation to October 7. When Feldhus said she would not be available on
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October 7, Wassmann again said she was “not doing it” and went into her office to call
Schmeidler.
When Feldhus returned to Wassmann’s office 10 minutes later, the door
was locked shut and the lights inside were off. Feldhus told Wassmann that she needed
to be at the reference deck. Wassmann slammed the door in Feldhus’s face. A short time
later, Wassmann went to the reference desk but left for the day at 11:05 a.m.
Wassmann met with Schmeidler on October 7. Schmeidler recommended
that Wassmann schedule an appointment with her doctor due to the stress caused by her
employment issues. Schmeidler suggested to Wassmann that she get a note from her
doctor and take medical leave to relieve her work-related stress. Wassmann did not
follow Schmeidler’s recommendation.
At about the same time, Schmeidler suggested that Wassmann retain an
attorney with Group Legal Services Program offered by the California Teachers
Association (CTA). A CTA representative confirmed the CTA’s desire to support
Wassmann and advocate on her behalf. Wassmann agreed to have CTA provide her with
legal counsel paid by the CTA, and an attorney was assigned to her.
VII.
Statement of Charges
On November 4, 2010, the District issued a Statement of Charges against
Wassmann. The Statement of Charges recommended dismissal for unprofessional
conduct (Ed. Code, § 87732, subd. (a)), unsatisfactory conduct (id., subd. (c)), and
evident unfitness for service (id., subd. (d)). On November 15, the District placed
Wassmann on immediate paid administrative leave. Several days later, Wassmann
submitted a letter to Roquemore and two separate responses (called “rebuttals”) to the
Statement of Charges. In the letter, which had not been reviewed by her attorney,
Wassmann claimed that “[s]ince Dean Feldhus has come back to IVC, she has disliked
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me for reasons other than my performance, and has acted in a hostile and discriminatory
manner towards me which has resulted in these [largely] fabricated charges.”
Wassmann met with her attorney and Schmeidler to discuss how to respond
to the charges. During this meeting, Wassmann brought up the issue of race. She and
Schmeidler also discussed the possibility of settling Wassmann’s employment dispute by
having Wassmann enter into a so-called “Last Chance Agreement,” which would have
provided Wassmann with an opportunity to avoid dismissal. As a condition of entering
into a Last Chance Agreement, the District requested that Wassmann go on medical leave
for the rest of the 2010-2011 academic year and during that period receive some form of
mental health care before returning at the start of the 2011-2012 academic year.
Wassmann ultimately rejected the District’s proposal.
Wassmann was also offered the possibility of entering the District’s
“Survive and Thrive” program, which was a sabbatical retreat designed to treat teacher
burnout. Wassmann declined the offer because, she testified at her deposition, “I wasn’t
suffering from teacher burnout.”
VIII.
The District’s Decision to Dismiss Wassmann and the
Administrative Hearing
On March 28, 2011, the District’s board of trustees met and authorized a
“Statement of Decision to Dismiss” to formally terminate Wassmann’s employment
“effective thirty (30) days from March 28, 2011.” The Statement of Decision to Dismiss
was based on the charges set forth in the Statement of Charges; that is, unprofessional
conduct, unsatisfactory conduct, and evident unfitness for service. The next day, the
District served Wassmann with a “Notice of Decision to Dismiss” notifying Wassmann
of her right to request a hearing. Wassmann was officially dismissed from her
employment on April 28, 2011.
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After receiving the Notice of Decision to Dismiss, Wassmann met with
Schmeidler to discuss options. They concluded that Wassmann would contest the
District’s decision to terminate her employment by requesting a hearing before the Office
of Administrative Hearings.
On April 7, 2011, Wassmann filed a Notice of Objection to the Statement
of Charges. An administrative hearing was conducted over five days in January 2012.
An administrative law judge from the Office of Administrative Hearings presided,
witnesses testified and were cross-examined, documentary evidence was received, and
the parties submitted written closing briefs. Wassmann was represented by counsel, and
Schmeidler testified on her behalf.
At her deposition, Wassmann testified that she raised the issue of racial
discrimination, but not age discrimination, during the administrative hearing. Schmeidler
and Long assert in this appeal that “a review of the transcripts from Wassmann’s
week-long termination hearing reveals that they contain no record of Wassmann ever
raising the issue of race- or age-based discrimination, harassment, or hostile work
environment.”
In August 2012, the administrative law judge issued a 20-page decision
upholding the District’s decision to dismiss Wassmann from employment. The
administrative law judge made extensive findings (60 separate findings in all) that
effectively upheld all of the charges made by the District. The judge concluded that
Wassmann had engaged in unprofessional conduct, her performance was unsatisfactory,
and she was unfit for service. The decision does not refer to any claims based on racial
discrimination, age discrimination, harassment, or hostile work environment.
IX.
Petition for Writ of Mandate and DFEH Charge
Wassmann challenged the administrative law judge’s decision in October
2012 by filing a petition for writ of mandate in the superior court. In the petition, she
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argued the administrative law judge’s factual findings were not supported by the weight
of the evidence. She did not raise racial discrimination, age discrimination, or
harassment.
In late August 2013, the superior court issued an order denying
Wassmann’s petition for writ of mandate. The court found that Wassmann “failed to
establish that the Administrative Law Judge’s decision was against the weight of the
evidence,” that “[t]he decision was supported by the findings and the findings were
supported by the evidence,” and that “[t]here was substantial evidence in light of the
whole record to support the findings.” The court found “[t]he record is replete with
instances of repeated violations of rules, multiple conflicts with supervisors and
numerous failures to perform assignments.”
In December 2013, Wassmann filed a discrimination charge with the DFEH
and requested a right to sue notice. The charge alleged: “I believe I was discriminated,
harassed and retaliated which lead [sic] to my termination, due to age, 55, race,
African[-]American, and color, Black.” Wassmann named only the District Defendants
as respondents in the charge. The DFEH issued Wassmann a right to sue notice. At
Wassmann’s request, the DFEH amended the charge to include Long and Schmeidler.
PROCEDURAL HISTORY
Wassmann filed this lawsuit in December 2013 after receiving the right to
sue notice from the DFEH. The second amended complaint asserted six causes of action:
(1) age discrimination, (2) racial discrimination—disparate treatment, (3) harassment
(hostile environment), (4) wrongful termination, (5) intentional infliction of emotional
distress, and (6) unfair business practices. The first, second, fourth and sixth causes of
action were against only the District Defendants. The third and fifth causes of action
were against all Defendants. Wassmann alleged that, as a proximate result of
Defendants’ discriminatory conduct, she suffered: (1) loss of employment and
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employment benefits; (2) loss of “employment-related opportunities;” and
(3) “humiliation, mental anguish, emotional and physical harm.”
The District Defendants filed a motion for summary judgment, alternatively
seeking summary adjudication of issues. Long and Schmeidler also filed a motion for
summary judgment, alternatively seeking summary adjudication of issues. Wassmann
filed extensive opposition to both motions.
By minute order, the trial court granted both motions for summary
judgment. As to the District Defendants, the court concluded that Wassmann’s first,
second, and third causes of action were barred for failure to exhaust administrative
remedies and by res judicata, and the fifth cause of action failed because it was derivative
of the first three causes of action and was barred by statute of limitations. As to Long
and Schmeidler, the court concluded that Wassmann’s third cause of action was barred
for failure to exhaust administrative remedies, and the fifth cause of action failed because
it was derivative of the first three causes of action and was barred by the statute of
limitations. In addition, the court found that Wassmann had not, in effect, opposed Long
and Schmeidler’s motion because her separate statement failed to comply with Code of
Civil Procedure section 437c, subdivision (b)(3).
Wassmann filed a notice of appeal before entry of judgment. We ordered
Wassmann to obtain a signed and entered judgment or face dismissal of her appeal. In
June 2016, a joint judgment in favor of Defendants was entered. The reasons recited in
the judgment for the court’s decision are the same as those in the minute order except
that, as to Long and Schmeidler, the court added that collateral estoppel barred
Wassmann’s claim that they aided and abetted the District Defendants’ violation of
FEHA.
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MOTION TO STRIKE WASSMANN’S
OPENING BRIEF
The District Defendants filed a motion to strike Wassmann’s opening brief.
They argue the brief should be stricken for procedural deficiencies including failure to
(1) include a statement of appealability, (2) state the nature of the action and relief sought
in the trial court, (3) organize the brief by topic headings, (4) properly cite to the record,
and (5) cite to applicable legal authority. The District Defendants repeat these arguments
in their respondents’ brief.
We deny the motion to strike Wassmann’s opening brief even though it is
deficient in many of the ways identified. We can with little difficulty discern the basis
for appealability, the nature of the action, and the relief sought in the trial court.
Wassmann’s failure to organize the brief by topic headings, to accurately cite to the
record, and to cite to applicable legal authority, impairs the persuasive value of her brief,
but that is a matter better dealt with in addressing the merits of the appeal.
WASSMANN’S REQUEST FOR JUDICIAL NOTICE
Wassmann filed a request for judicial notice of 77 items, attached as
exhibits A through XXX to the request. We grant the request as to Exhibit A and Exhibit
PPP based on Evidence Code section 451, subdivision (a), as statutory law of the State of
California. We deny the request for judicial notice of the other items because each of
them falls into at least one of these categories: (1) it is not a matter of which we may take
judicial notice (id., §§ 450, 451, 452); (2) it is irrelevant (id., § 350); (3) it is not properly
authenticated (id., §§ 453, subd. (b), 1400, 1401, subd. (a)); and (4) it already is part of
the record on appeal. In addition, the request for judicial notice does not comply with
rule 8.252(a)(2), California Rules of Court.
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DISCUSSION
I.
Standard of Review
A trial court properly grants summary judgment if there is no triable issue
of material fact and the moving party is entitled to judgment as a matter of law. (Code
Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
843.) “We review the trial court’s decision de novo, considering all of the evidence the
parties offered in connection with the motion (except that which the court properly
excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill
v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We liberally construe the evidence in
support of the party opposing summary judgment and resolve all doubts about the
evidence in that party’s favor. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.)
II.
Wassmann’s FEHA Claims Are Barred by Res Judicata
or Collateral Estoppel and by Failure to Exhaust
Administrative Remedies.
“FEHA affords California employees broad protections against
discrimination, harassment, and retaliation on any of a wide range of impermissible
bases.” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88,
106, fn. omitted. (McDonald)) Wassmann brought three causes of action under FEHA:
(1) racial discrimination (Gov. Code, § 12940, subd. (a)); (2) age discrimination (ibid.);
and (3) harassment (id., subd. (j)(1)).
A. Res Judicata and Collateral Estoppel
The trial court found, and the District Defendants argue, that Wassmann’s
causes of action for racial discrimination, age discrimination, and harassment are barred
under principles of res judicata. Long and Schmeidler argue that Wassmann’s cause of
action against them for harassment is barred by principles of collateral estoppel. We
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conclude that all of Wassmann’s claims seeking recovery for employment termination are
barred by the administrative law judge’s decision and the judgment denying Wassmann’s
petition for writ of mandate.
The doctrine of res judicata or claim preclusion dictates that in ordinary
circumstances a final judgment on the merits prevents relitigation of the same cause of
action in a second suit between the same parties or parties in privity with them. (DKN
Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) The doctrine of collateral
estoppel or issue preclusion prevents “the relitigation of issues argued and decided in a
previous case, even if the second suit raises different causes of action.” (Ibid.) “Under
issue preclusion, the prior judgment conclusively resolves an issue actually litigated and
determined in the first action.” (Ibid.)
Res judicata encompasses “‘matters which were raised or could have been
raised, on matters litigated or litigable’” in the prior action. (Busick v. Workmen’s Comp.
Appeals Bd. (1972) 7 Cal.3d 967, 975.) “‘“The doctrine of res judicata rests upon the
ground that the party to be affected, or some other with whom he is in privity, has
litigated, or had an opportunity to litigate the same matter in a former action in a court of
competent jurisdiction, and should not be permitted to litigate it again to the harassment
and vexation of his opponent.”’” (Villacres v. ABM Industries Inc. (2010) 189
Cal.App.4th 562, 575.) “‘“‘If the matter was within the scope of the action, related to the
subject-matter and relevant to the issues, so that it could have been raised, the judgment
is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise
urged.’”’” (Id. at p. 576.)
To understand why the administrative law judge’s decision and the
judgment on Wassmann’s petition for writ of mandate are conclusive in this lawsuit on
18
2
all issues arising out the termination of Wassmann’s employment, it necessary to
consider, first, the statutory scheme governing dismissal of community college faculty
and, second, the doctrine of exhaustion of judicial remedies.
Part 51, Chapter 3, Article 4 of the Education Code sets out a
comprehensive scheme governing “the evaluation of, the dismissal of, and the imposition
of penalties on, community college faculty.” (Ed. Code, § 87660.) “The Education Code
sets forth due process rights granted to community college faculty members in
disciplinary matters, including the right to notice, opportunity to object, a hearing before
an arbitrator or administrative law judge, and a decision by the governing board. ([Ed.
Code,] §§ 87669, 87672–87674, 87678–87680.)” (Farahani v. San Diego Community
College Dist. (2009) 175 Cal.App.4th 1486, 1492.)
As relevant here, a community college faculty member may be dismissed
for “[i]mmoral or unprofessional conduct,” “[u]nsatisfactory performance,” or “[e]vident
unfitness for service.” (Ed. Code, § 87732, subds. (a), (c) & (d); see id., § 87667 [“a
contract or regular employee may be dismissed . . . for one or more of the grounds set
forth in Section 87732”].) If a community college decides to dismiss an employee, the
first step is for the college’s governing board to deliver to the employee “a written
statement, duly signed and verified . . . setting forth the complete and precise decision of
the governing board and the reasons therefor.” (Ed. Code, § 87672.) The District
complied with section 87672 by issuing and delivering to Wassmann the Statement of
2
In State Bd. of Chiropractic Examiners v. Superior Court (Arbuckle) (2009) 45 Cal.4th
963 the California Supreme Court concluded the Legislature intended that an
administrative finding not be given preclusive effect in a subsequent civil lawsuit
involving a whistleblower claim alleged by a state agency employee under the California
Whistleblower Protection Act, Government Code sections 8547 through 8547.11.
Wassmann did not allege a whistleblower claim and therefore the principle of Arbuckle
does not bar giving preclusive effect to the administrative law judge’s decision.
19
Decision to Dismiss charging her with unprofessional conduct, unsatisfactory
performance, and evident unfitness.
The next step is for the employee to decide whether to challenge the
decision of the community college district’s governing board. Education Code section
87673 states: “If the employee objects to the decision of the governing board, or the
reasons therefor, on any ground, the employee shall notify, in writing, the governing
board, the superintendent of the district which employs him or her, and the president of
the college at which the employee serves of his or her objection within 30 days of the
date of the service of the notice.” (Italics added.) The italicized phrase is important
because it suggests the employee may object to the statement of decision to dismiss on
grounds not encompassed within the statement itself. Wassmann timely objected to the
District’s statement of decision to dismiss, and demanded a hearing.
If, as in this case, the employee objects to the decision of the governing
board, a hearing is conducted. (Ed. Code, § 87674.) The hearing is conducted by an
agreed-upon arbitrator unless the parties cannot reach agreement on one, in which case,
the governing board certifies the matter to the Office of Administrative Hearings and
requests the appointment of an administrative law judge. (Id., § 87678.) In this case, an
administrative law judge was appointed.
The administrative law judge must conduct proceedings in accordance with
Chapter 5, Part 1, Division 3, of Title 2 of the Government Code, with the exception that
the parties have the same rights and duties to discovery as any party in a civil action.
(Ed. Code, § 87679.)
The administrative law judge conducts a full evidentiary hearing at which
witnesses must testify under oath. (Ed. Code, § 87680.) At the close of the hearing, the
administrative law judge “shall determine whether there is cause to dismiss or penalize
the employee” and, if the judge finds cause, then the judge must “determine whether the
employee shall be dismissed and determine the precise penalty to be imposed.” (Ibid.)
20
In this case, an evidentiary hearing was conducted over five days and the administrative
judge issued a 20-page ruling upholding the District’s decision to terminate Wassmann’s
employment.
The administrative law judge’s decision is subject to judicial review by
petition for writ of mandate. “The decision of the arbitrator or administrative law judge,
as the case may be, may, on petition of either the governing board or the employee, be
reviewed by a court of competent jurisdiction in the same manner as a decision made by
an administrative law judge under Chapter 5 (commencing with Section 11500) of Part 1
of Division 3 of Title 2 of the Government Code.” (Ed. Code, § 87682.) In the mandate
proceeding, the superior court “shall exercise its independent judgment on the evidence.”
(Ibid.) Wassmann challenged the administrative law judge’s decision by bringing a
petition for writ of mandate in the superior court. The superior court, exercising its
independent review of the evidence, denied the petition, and judgment was entered in
favor of the District Defendants.
“Under the doctrine of exhaustion of judicial remedies, ‘[o]nce a[n
administrative] decision has been issued, provided that decision is of a sufficiently
judicial character to support collateral estoppel, respect for the administrative
decisionmaking process requires that the prospective plaintiff continue that process to
completion, including exhausting any available judicial avenues for reversal of adverse
findings. [Citation.] Failure to do so will result in any quasi-judicial administrative
findings achieving binding, preclusive effect and may bar further relief on the same
claims. [Citation.]’ [Citation.] Generally speaking, if a complainant fails to overturn an
adverse administrative decision by writ of mandate, ‘and if the administrative proceeding
possessed the requisite judicial character [citation], the administrative decision is binding
in a later civil action brought in superior court.’” (Runyon v. Board of Trustees of
California State University (2010) 48 Cal.4th 760, 773; see Johnson v. City of Loma
Linda (2000) 24 Cal.4th 61, 76 (Johnson) [“when, as here, a public employee pursues
21
administrative civil service remedies, receives an adverse finding, and fails to have the
finding set aside through judicial review procedures, the adverse finding is binding on
discrimination claims under the FEHA”].)
Wassmann exhausted her judicial remedies by filing a petition for writ of
mandate to challenge the administrative law judge’s decision. She did not, however,
succeed in overturning that decision. Thus, the administrative law judge’s decision (as
upheld by the superior court judgment) had preclusive effect in this lawsuit if the
administrative law proceeding “‘possessed the requisite judicial character.’” (Runyon v.
Board of Trustees of California State University, supra, 48 Cal.4th at p. 773.)
“For an administrative decision to have collateral estoppel effect, it and its
prior proceedings must possess a judicial character. [Citation.] Indicia of proceedings
undertaken in a judicial capacity include a hearing before an impartial decision maker;
testimony given under oath or affirmation; a party’s ability to subpoena, call, examine,
and cross-examine witnesses, to introduce documentary evidence, and to make oral and
written argument; the taking of a record of the proceeding; and a written statement of
reasons for the decision.” (Pacific Lumber Co. v. State Water Resources Control Bd.
(2006) 37 Cal.4th 921, 944.)
The administrative law proceedings in this case bore all of those indicia:
The hearing was conducted by an impartial decisionmaker appointed by the Office of
Administrative Hearings; testimony was given under oath (as Education Code section
87680 requires); each party could subpoena, examine, and cross-examine witnesses; each
party was able to and did make written and oral arguments; the entire proceeding was
reported and transcribed; and the administrative law judge issued a lengthy statement of
decision. In addition, Wassmann had full rights of discovery. Because the administrative
hearing had the requisite judicial character, the administrative law judge’s decision, and
the superior court judgment upholding it, has preclusive effect in this lawsuit.
22
Which issues are precluded by the administrative law judge’s decision?
The administrative law judge’s findings that Wassmann had engaged in unprofessional
conduct, her performance was unsatisfactory, and she was unfit for service are binding
and preclusive in later civil actions. (Johnson, supra, 24 Cal.4th at pp. 65, 69-70;
Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 484.) In addition, as
we have explained, Education Code section 87673 states the employee must notify the
community college governing board if the employee objects to its decision or its reasons
“on any ground.” This passage means the administrative law hearing encompasses any
and all grounds on which the employee challenges the governing board’s decision,
including claims of discrimination or harassment.
Thus, in the administrative hearing, Wassmann could have raised her
claims of racial discrimination, age discrimination, and harassment as grounds for a
finding of lack of cause to dismiss her. (Busick v. Workmen’s Comp. Appeals Bd., supra,
7 Cal.3d at p. 975.) She did not do so. She testified at her deposition that she did raise
racial discrimination in the administrative proceedings, but, if that were true, she failed to
exhaust her judicial remedy because she did not raise racial discrimination in her petition
for writ of mandate. The administrative law judge’s findings are, therefore binding
against Wassmann on her claims under FEHA for wrongful termination based on race
and age, and harassment.
Although Long and Schmeidler were not parties to the administrative
hearing, they may invoke collateral estoppel defensively to bar Wassmann from
“asserting a claim that [she] had previously litigated and lost against another defendant.”
(Parklane Hosiery Co., Inc. v. Shore (1979) 439 U.S. 322, 329.) As the trial court found,
Wassmann is collaterally estopped from alleging Long and Schmeidler aided and abetted
the District Defendants in violating FEHA because Wassmann litigated and lost her claim
that the District Defendants lacked cause to dismiss her.
23
Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477 (Castillo)
illustrates the interaction between principles of exhaustion of judicial remedies and res
judicata or collateral estoppel under facts similar to those presented here. In Castillo,
supra, at page 479, the plaintiff was dismissed for cause from his position with the
defendant city. The plaintiff appealed his dismissal to the county civil service
commission, which conducted an evidentiary hearing. (Ibid.) At the hearing, the
plaintiff presented evidence of lack of cause but did not assert disparate treatment based
on age, race, or national origin. (Id. at p. 482.) The hearing examiner concluded the
plaintiff’s dismissal was “‘appropriate.’” (Ibid.) The plaintiff filed a petition for writ of
mandate in the superior court seeking review of the administrative decision. (Id. at
p. 479.) While the petition was pending, the plaintiff obtained a notice to sue letter from
the DFEH and sued the defendant under FEHA for wrongful termination based on age,
race, and national origin. (Id. at p. 480.) After the superior court denied the plaintiff’s
writ petition, the defendant moved for, and the trial court granted, summary judgment
based on “principles that bar relitigation.” (Id. at pp. 480, 481.)
The Court of Appeal affirmed based on collateral estoppel and exhaustion
of judicial remedies. The court explained: “When judicial remedies have been
exhausted, the administrative finding has either been upheld or set aside. If the
administrative finding is upheld, or if it is never challenged judicially, it is ‘binding on
discrimination claims under the FEHA.’ [Citation.] . . . [W]here ‘an administrative
process provides internal remedies,’ an administrative finding is binding unless reversed
through the judicial process.” (Castillo, supra, 92 Cal.App.4th at p. 485.) The hearing
examiner’s decision was final on the merits and binding once the superior court denied
the plaintiff’s petition for writ of mandate and the time for appeal of the denial had
passed. (Id. at pp. 482-483, 486.) At the administrative hearing, the plaintiff could have
introduced admissible evidence that his dismissal was the result of unlawful
discrimination. (Id. at p. 482.) Because the hearing examiner had found the plaintiff’s
24
dismissal was appropriate, the examiner necessarily found the dismissal was for proper
reasons and not a pretext for discrimination. (Ibid.)
The Castillo court concluded the hearing examiner’s finding (that the
plaintiff’s discharge from employment was not wrongful) was binding on the plaintiff’s
FEHA claims and could not be relitigated. (Castillo, supra, 92 Cal.App.4th at p. 486.)
As a consequence, the plaintiff could not claim his employment termination was
wrongful and the defendant was entitled to judgment as a matter of law. (Id. at
pp. 486-487.)
Here, the administrative law judge’s decision and the superior court
judgment are binding on all claims and issues related to whether the District had cause to
dismiss Wassmann. She, like the plaintiff in Castillo, had the opportunity to present
evidence of unlawful discrimination to show the District’s decision to dismiss her was
without cause and the District’s reasons were a pretext. Because the administrative law
judge in this case, as his counterpart in Castillo, found there was cause to dismiss, the
judge necessarily found that her dismissal was for proper reasons and not wrongful. The
administrative law judge’s findings became binding once the superior court denied
Wassmann’s petition for writ of mandate and the time for her to appeal that denial had
passed. The administrative law judge’s finding that Wassmann’s dismissal was proper
and binding on Wassmann’s FEHA claims and could not be relitigated. Thus, res
judicata or collateral estoppel bars Wassmann’s discrimination and harassment claims in
this lawsuit to the extent they seek redress for the injury of her employment termination.
B. Failure to Exhaust Administrative Remedies
But the administrative law judge’s decision (and the superior court
judgment upholding it) only dealt with the District’s decision to dismiss Wasserman. Res
judicata would not bar claims of discrimination and harassment to the extent they sought
25
3
recovery for harm caused by injuries other than loss of employment. It is not clear
whether Wassmann sought recovery for injuries other than loss of employment. She
alleged that Defendants’ actions caused her to suffer the “loss of her annual salary and
benefits,” to lose “employment-related opportunities,” and to suffer “humiliation, mental
anguish, emotional and physical harm.” The second amended complaint does not clarify
whether the latter two forms of injury were solely derivative of, or were separate and
distinct from, her loss of employment.
In any case, Wassmann’s discrimination and harassment claims, to the
extent they sought redress for an injury other than termination of employment, are barred
for failure to exhaust administrative remedies. The trial court concluded that Wassmann
had failed to exhaust her administrative remedies because she did not timely file a charge
with the DFEH.
Before bringing a lawsuit for FEHA violations, an aggrieved employee
must exhaust administrative remedies by timely filing an administrative complaint with
the DFEH and receiving a right to sue notice. (Gov. Code, §§ 12960, subd. (b), 12962,
subd. (c).) Exhaustion of administrative remedies is “‘a jurisdictional prerequisite to
resort to the courts.’” (Johnson, supra, 24 Cal.4th at p. 70.) The administrative
complaint must be filed with the DFEH within one year of the date on which the alleged
unlawful practice occurred. (Gov. Code, § 12960, subd. (d).) “[O]rdinarily, a plaintiff
cannot recover for acts occurring more than one year before filing of the DFEH
complaint.” (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1402.)
3
For purposes of res judicata, a cause of action is “the right to obtain redress for a harm
suffered, regardless of the specific remedy sought or the legal theory (common law or
statutory) advanced.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.)
One injury gives rise to a single claim for relief even if liability might be predicated on
several legal theories. (Ibid.) “Thus, under the primary rights theory, the determinative
factor is the harm suffered. When two actions involving the same parties seek
compensation for the same harm, they generally involve the same primary right.” (Ibid.)
26
Wassmann obtained a right to sue notice from the DFEH in December
2013. But any injury Wassmann might have suffered for race discrimination, age
discrimination, or harassment by the District Defendants, Long, or Schmeidler would
have occurred on or before April 28, 2011, the date on which her employment with the
District ended. Wassmann testified at her deposition the District Defendants did not
engage in any discriminatory or harassing conduct against her between April 28, 2011
and August 20, 2013, that her last contact with Long was in fall 2010, and that her last
contact with Schmeidler was in spring 2011. Because Wassmann did not bring an
administrative complaint before the DFEH within one year of April 28, 2011, she failed
to exhaust administrative remedies for claims of discrimination and harassment seeking
recovery for injuries other than loss of employment.
Wassmann suggests the District Defendants continued to engage in
unlawful conduct after her dismissal date by submitting falsified evidence at the
administrative hearing and opposing her petition for writ of mandate. Under the
continuing violation doctrine, a plaintiff may recover for unlawful acts occurring outside
the limitations period if they continued into that period. (Jumaane v. City of Los Angeles,
supra, 241 Cal.App.4th at p. 1402.) The continuing violation doctrine requires proof that
(1) the defendant’s actions inside and outside the limitations period are sufficiently
similar in kind; (2) those actions occurred with sufficient frequency; and (3) those actions
have not acquired a degree of permanence. (Richards v. CH2M Hill, Inc. (2001) 26
Cal.4th 798, 802.)
The continuing violation doctrine does not help Wassmann. The alleged
acts of discrimination and harassment occurring outside the limitations period (before
December 2011) and inside the limitation periods (after December 2011) are not at all
similar. The District Defendants’ alleged acts of discrimination and harassment
“acquired a degree of permanence” in April 2011, when Wassmann’s employment was
terminated.
27
Indeed, the last wrongful act alleged in the second amended complaint was
Wassmann’s employment termination in April 2011. The second amended complaint
does not allege any acts of discrimination or harassment occurring after that date.
Wassmann could not defeat summary judgment with evidence of events after April 2011
because the allegations of the second amended complaint framed the issues for the
summary judgment motions. (Lachtman v. Regents of University of California (2007)
158 Cal.App.4th 187, 197.) Wassmann contends the administrative law judge engaged in
discrimination against her by issuing a decision based on “unfounded and false”
accusations and information. The administrative law judge is not, however, an employee
or agent of the District.
Wassmann’s pursuit of administrative remedies for the termination of her
employment did not toll the time for filing a complaint with the DFEH for discrimination
and harassment leading to other injuries. The time for filing a DFEH complaint is
equitably tolled while the employee pursues an administrative remedy, whether or not
exhaustion of that remedy is a prerequisite to filing suit. (McDonald, supra, 45 Cal.4th at
pp. 96, 106-108.) However, in her administrative proceeding, Wassmann pursued a
remedy only for the termination of her employment and not for any other injury brought
about by the Defendants’ allegedly unlawful conduct. If Wassmann had claims of injury
other than loss of employment, she had to file a DFEH complaint on those claims within
one year of when the injury occurred, in no event later than one year from April 28, 2011.
28
III.
Wassmann’s Cause of Action for Intentional Infliction of
Emotional Distress Is Time-Barred.
4
In the fifth cause of action, for intentional infliction of emotional distress,
Wassmann alleged: “Commencing in July 2009, and continuing to [Wassmann]’s
termination in April 2011, Defendants engaged in severe and/or pervasive harassing
conduct based upon [Wassmann]’s race. [Wassmann] was continuously reprimanded,
followed even into the restroom, ordered to sit by the bathroom with her office door to
remain open to continuously smell foul odors, constantly evaluated, and forced into
impromptu meetings which created a hostile environment.” Wassmann alleged that, as a
result of Defendants’ “intentional, extreme, and outrageous conduct,” she suffered
“extreme emotional and physical distress, including humiliation, mental anguish,
emotional and physical distress, and has been injured in her mind and body.”
The trial court sustained without leave to amend Long and Schmeidler’s
demurrer to Wassmann’s intentional infliction of emotional distress cause of action
alleged in the first amended complaint. (The court had overruled the District Defendants’
demurrer to that cause of action). The court later granted summary judgment on the
intentional infliction of emotional distress cause of action in the second amended
complaint. Long and Schmeidler argue that as to the fifth cause of action it is unclear
whether Wassmann is challenging the order sustaining the demurrer without leave to
amend or the summary judgment.
4
The elements of a cause of action for intentional infliction of emotional distress are
(1) the defendant engages in extreme and outrageous conduct with the intention of
causing, or reckless disregard of the probability of causing, emotional distress; (2) the
plaintiff suffers severe or extreme emotional distress; and (3) the defendant’s outrageous
conduct is the actual and proximate cause of the plaintiff’s emotional distress. (Hughes v.
Pair, supra, 46 Cal.4th at p. 1050.)
29
Wassmann’s notice of appeal encompasses all nonappealable orders made
before entry of judgment. (Code Civ. Proc., § 906; see Gavin W. v. YMCA of
Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 668-669.) In her appeal,
Wassmann therefore may challenge the order sustaining without leave to amend Long
and Schmeidler’s demurrer to the fifth cause of action in the first amended complaint.
Under either the standard for reviewing orders sustaining demurrers or for
granting summary judgment, Wassmann’s cause of action for intentional infliction of
emotional distress is time-barred. Intentional infliction of emotional distress has a
two-year statute of limitations. (Code Civ. Proc., § 335.1; Pugliese v. Superior Court
(2007) 146 Cal.App.4th 1444, 1450.) “A cause of action for intentional infliction of
emotional distress accrues, and the statute of limitations begins to run, once the plaintiff
suffers severe emotional distress as a result of outrageous conduct on the part of the
defendant.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 889.)
According to the allegations of the second amended complaint and the
undisputed evidence submitted in connection with the motions for summary judgment,
Wassmann began suffering emotional distress from alleged acts of discrimination and
harassment no later than April 28, 2011, when her employment was officially terminated
5
and she last had contact with the District Defendants. She did not file this lawsuit until
nearly 32 months later, in December 2013. The statute of limitations on common law
claims is not tolled while DFEH charges are pending because the aggrieved employee
can simultaneously pursue statutory and common law remedies. (Mathieu v. Norrell
5
In a declaration submitted in opposition to the District Defendants’ motion for summary
judgment, Wassmann stated that as early as July 2009 she was “frightened by [Feldhus’s]
aggressive and hostile behavior towards me” and when she received the statement of
charges, “was increasingly fearful.” Wassmann testified at her deposition she had no
interactions with any of the District Defendants after April 28, 2011 except in connection
with the administrative hearing, and her last contact with Long was in the fall of 2010.
Schmeidler declared that her last dealings with Wassmann were in spring of 2011.
30
Corp. (2004) 115 Cal.App.4th 1174, 1189.) An aggrieved employee may proceed
directly to court on common law claims without receiving a right to sue notice from the
DFEH. (Rojo v. Kliger (1990) 52 Cal.3d 65, 88.)
The statute of limitations on Wassmann’s cause of action for intentional
infliction of emotional distress also was not equitably tolled while the Education Code
administrative procedure was pending. “Where applicable, the doctrine [of equitable
tolling] will ‘suspend or extend a statute of limitations as necessary to ensure
fundamental practicality and fairness.’” (McDonald, supra, 45 Cal.4th at p. 99.)
“Broadly speaking, the doctrine applies ‘“[w]hen an injured person has several legal
remedies and, reasonably and in good faith, pursues one.”’ [Citations.] Thus, it may
apply where one action stands to lessen the harm that is the subject of a potential second
action; where administrative remedies must be exhausted before a second action can
proceed; or where a first action, embarked upon in good faith, is found to be defective for
some reason.” (Id. at p. 100.)
Equitable tolling applies to claims under FEHA during the period in which
the plaintiff exhausts administrative remedies or when the plaintiff voluntarily pursues an
administrative remedy or nonmandatory grievance procedure, even if exhaustion of that
remedy is not mandatory. (McDonald, supra, 45 Cal.4th at pp. 110-111.) Wassmann’s
claim of intentional infliction of emotional distress is not a FEHA claim, but a common
law claim, for which the administrative proceeding could not provide a legal remedy.
The issue presented in the administrative proceeding was “whether there [was] cause to
dismiss or penalize [Wassmann].” (Ed. Code, § 87680.) Although Wassmann could
have raised any claims related to the issue of cause for dismissal, intentional infliction of
emotional distress is not the same because, even if proved, it would not in and of itself
disprove cause for dismissal. The only remedy sought for intentional infliction of
emotional distress—damages—could not have been awarded by the administrative law
judge. (Ibid.)
31
The Education Code provisions regarding dismissal of community college
employees do not state, either directly or by implication, that they preempt common law
rules or remedies. On the contrary, by limiting the arbitrator’s decision to whether there
was cause to dismiss or penalize the employee, and by denying the arbitrator the ability to
award damages, it seems to us the Education Code expresses a legislative intent not to
abrogate a community college employee’s common law remedies. (See McDonald,
supra, 45 Cal.4th at p. 110.) The flip side of that proposition, as it applies here, is that
Wassmann could have pursued a lawsuit for intentional infliction of emotional distress
simultaneously with the administrative proceeding. She had to bring her cause of action
for intentional infliction of emotional distress within two years of the time at which that
cause of action accrued, and the statute of limitations was not tolled while the
administrative proceeding was pending.
DISPOSITION
The judgment is affirmed. In the interest of justice, no party may recover
costs on appeal.
FYBEL, ACTING P. J.
WE CONCUR:
THOMPSON, J.
GOETHALS, J.
32
Filed 6/21/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
CAROL E. WASSMANN,
Plaintiff and Appellant, G053411
v. (Super. Ct. No. 30-2013-00692313)
SOUTH ORANGE COUNTY ORDER GRANTING REQUEST
COMMUNITY COLLEGE DISTRICT et FOR PUBLICATION
al.,
Defendants and Respondents.
Defendants and Respondents South Orange County Community College
District, Karima Feldhus, Robert Brumucci, and Glenn Roquemore have requested that
our opinion, filed June 12, 2018, be certified for publication. It appears that our opinion
meets the standards set forth in California Rules of Court, ruled 8.1105(c)(2), (4), and (6).
The request is GRANTED. The opinion is ordered published in the Official Reports.
FYBEL, ACTING P. J.
WE CONCUR:
THOMPSON, J.
GOETHALS, J.