By Jeremy Pasternak
CAOC “Forum” – March 2006
When litigating against public entities in employment cases, there are some particular issues you should be aware of in order to be sure you have satisfied the administrative prerequisites to bringing suit.
A. FEHA Claims
If your claim is for discrimination, harassment, failure to accommodate disability, or the like, you will need to file a complaint with the California Department of Fair Employment and Housing. This is a jurisdictional prerequisite to bringing any claim founded upon the California Fair Employment and Housing Act, and to perfect the claim you must get a “right to sue” letter from the DFEH (which they will give you upon request after or upon the filing of a claim). You can fill out the form yourself (the client must sign it) or you can have your client just go to the DFEH (which is not recommended).
If you wish to sue individuals, including employees of public entities, you need to file claims against them as well.
Filing with the DFEH will preserve your statutory claims. However, it will not preserve your common-law claims. This must be done with a government tort claim, discussed below.
B. Common Law Claims
It is a common misperception that when bringing a FEHA claim there is no need to file a government tort claim. This is not actually the case. It is true that to bring a statutory FEHA claim, you are required only to file with DFEH. The courts have expressly held that this administrative filing requirement falls outside the general Government Code 910 (Tort Claim) requirement. (See Garcia v. Los Angeles Unified School Dist. (1985) 173 Cal.App.3d 701, 710
However, the common law claims are not covered by FEHA complaints. Therefore, if you want to bring common law claims (such as wrongful termination in violation of public policy or intentional infliction of emotional distress), you still need to go through the government tort claim process, and you need to do so within the 180 day limitations period.
C. Labor Code Claims (other than wage claims)
No California court has ever held that to bring a claim based on the Labor Code, you must first exhaust administrative remedies with the Labor Commissioner, that is, the Division of Labor Standards Enforcement. However, one Federal District Court has suggested that claims based on the Labor Code must first be exhausted through an administrative filing. (Gutierrez v. RWD Techs., Inc. (E.D. Cal. 2003) 279 F.Supp.2d 1223.)
The Gutierrez decision, besides being something of an anomaly, makes little sense in light of the fact that the Labor Commission simply has no procedure to take claims and then issue right-to-sue type letters as the DFEH does.
However, out of an abundance of caution, you can use the following procedure: 1) file your complaint with the Labor Commission using their form; 2) file your lawsuit; 3) when you attend your first Labor Commission hearing (which is like a status conference) and you happen to mention you have filed the lawsuit, the hearing officer will almost certainly dismiss your Labor Commission complaint. You have then, arguably, fulfilled any claimed administrative prerequisite.
D. Wage Claims – Labor Code 2699
The recent passage and then amendment of Labor Code 2699, the Private Attorney General’s Act or “PAGA,” has caused a great deal of confusion. It is still not entirely clear the extent to which it provides actual remedies to claimants, or the extent to which it might even have a preemptive effect on certain penalties relating to failures to pay wages and other claims.
It is also unclear the extent to which the Section 2699 “Administrative Filing Requirement” can be used to bar claims.
The following outlines a procedure to use just to deal with the administrative filing:
1) Before or soon after filing your complaint in court, send a certified letter to the California Labor and Workforce Development Agency (801 K St., Suite 2101, Sacramento, CA 95814). In the letter, state the following:
2) If you decide you want to bring these claims, be sure your court complaint includes a cause of action for violation of Section 2699 et seq.
E. Union Employees
Many, if not most, state and county government employees are in unions. This means that they are subject to a grievance procedure, which includes appeals to the State Personnel Board. This can be trap for the unwary. If a client or potential client has gone down the grievance route, it can be used to later bar them from bringing statutory claims.
The courts have held that state employees are not required to go through internal grievance procedures before filing with the DFEH and pursuing civil remedies. However, if they do pursue the grievance process, they have then elected to subject themselves to it. Not only must they finish this process to achieve any remedy, but an adverse finding in the process can be used to collaterally estop later claims, including FEHA and other statutory claims, unless they challenge that adverse finding in an administrative mandamus appeal to the Superior Court. (Schifando v. City of Los Angeles (2000) 31 Cal.4th 1074, 1090, citing Johnson v. City of Loma Linda (2000) 24 Cal.4th 61.)
To write this article, I consulted two lawyers who have special insight into litigating employment claims with government entities. The first was formerly with the Attorney General’s office, where he defended the claims. The second is David Greenberg, a CAOC member who has brought scores of employment suits against state and county entities. I have also added some of my own perspectives, based on experience suing both state and county governments in employment matters.
A. The Righteousness Factor
Unfortunately, when it comes to a feeling that they can do no wrong, government entities can be even worse than large corporations or even insurance companies. This attitude is not based on anything more than the mere fact that they are government entities.
Of course, this problem can exist whenever a government entity is sued in any context. However, there are factors which make it particularly problematic in the employment context.
Essentially, government entity policy-makers – especially the state – are very conscious of the fact that they employ a large number of employees, and are equally conscious of not wanting to become an “easy mark.” They often feel that they must, by fighting litigation tooth and nail, demonstrate that they will not just roll over to suits.
This is something that is particularly important in employment suits. Compare them to auto cases. An insurer may try to send a message to the plaintiffs’ bar that it will fight every case, but that message obviously does not get out to the public at large, and each plaintiff only needs one lawyer. The tactic of fighting every claim therefore has a somewhat limited utility. In the employment case, however, the audience is the potential class of plaintiffs, in other words – the entity’s employees. The idea is not to discourage lawyers, but to discourage current employees from even bringing the cases – or calling lawyers – in the first place.
An additional problem is the way that government employees are viewed. A former government lawyer has noted that he observed an attitude among his peers and the persons he represented that government employees are a somewhat privileged bunch. Arguably, they are. They have civil service rights, are entitled to “Skelly” hearings before being fired, are far more likely to have union protections, and have various benefits of employment often not found in the private sector. This results in a feeling that 1) these employees have it good and should stop complaining (perhaps not such a legitimate perspective), and 2) in a wrongful termination case, the employee probably had so many protections that it is just inconceivable that any laws were broken (simplistic and overbroad, but not necessarily incorrect).
While this attitude can be great for us when exposed at trial, it does not help when we are trying to settle the case, so be sure you are in for the long haul.
B. The Opposite – The “Do the Right Thing Factor”
On the other hand, there is sometimes a sense among government defendants and their counsel that a government entity simply has an obligation to do what is right, as opposed to the capitalistic private entity, which will fight to win if it can, even if it knows it is wrong. However, in some instances, government counsel, despite believing in the winability of their case, push hard for a creative settlement out of concern for the well-being of a former employee who is viewed as a colleague based on the commonality of their respective employers.
The public entity’s stance can also be different on appeal. The Attorney General’s office represents a host of state agencies, including the Department of Fair Employment and Housing (which brings suit on behalf of employees). The AG’s office is therefore often in a position where it is advocating on behalf of an expansion of employee rights. As a result, an appeal in one of its “defendant” cases could work to undo steps that were being made or attempted in another case, sometimes causing one public entity to not fight certain issues lest it undermine the employee-side work that the AG’s office is doing elsewhere.
C. The Absence of Capitalism
The risk of loss is obviously the most important factor which drives settlement. Government entities just do not suffer from the same pressures in this regard. Their budgets are set, they are not profit-making entities, they can rely on tax dollars, and they are not subject to punitive damages. In short, the “bottom line” factors just are not present.
D. The Absence of Outside Counsel
Most often, government entities have in-house counsel. The politics between an outside lawyer and the employer-client which often drive settlement (fear of losing the client through a bad verdict, etc.) are just not present. This can be an impediment to settlement. This is exacerbated by the fact that the lawyers, ironically, like the employee-plaintiffs they oppose, enjoy a certain job security as government employees, and so again the typical politics which can drive settlement are absent.
A very good illustration of this point is found in litigation with the University of California. Although technically a state agency, it operates for the most part independently of the State, and hires outside counsel to litigate employment cases. When it comes to how the cases are litigated and settled, the UC seems to act more like a private employer than a government one, insofar as making dollars-and-sense decisions regarding the litigation of employment cases.
On the other hand, a search of jury verdicts reveals more reported employment verdicts (FEHA violations and/or wrongful terminations) against the UC than against the entire rest of the State of California (though the State has more jury verdicts which became the subject of reported appeals).
Hopefully, the above will help you: 1) make sure that you “dot the I’s and cross the T’s” when bringing employment cases against government entities; and 2) be aware of how these cases, even once safely in litigation, can differ from those against private employers.
Jeremy D. Pasternak has law offices in San Francisco. He is a member of the Forum Editorial Board.