Opinion
F061765 Super. Ct. No. 09-234184
02-02-2012
ROSALINDA MARINE, Plaintiff and Appellant, v. COLLEGE OF THE SEQUOIAS, Defendant and Respondent.
Petrie, Dorfmeier & Morris, J. David Petrie and Sean T. O'Rourke for Defendant and Appellant. Stubbs & Leone, Luis A. Leone, Nancy A. Huneke and Kathleen L. Darmagnac for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Melinda M. Reed, Judge.
Petrie, Dorfmeier & Morris, J. David Petrie and Sean T. O'Rourke for Defendant and Appellant.
Stubbs & Leone, Luis A. Leone, Nancy A. Huneke and Kathleen L. Darmagnac for Defendant and Respondent.
Plaintiff appeals from a judgment entered after the trial court granted defendant's motion for summary judgment; the trial court found that plaintiff's claims were barred based on collateral estoppel. We conclude defendant failed to negate all of plaintiff's claims as they were made in her first amended complaint and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff sued defendant, her former employer, for wrongful discharge and related causes of action based on disability discrimination. After defendant's demurrer to some of the causes of action of the first amended complaint was sustained without leave to amend, the surviving causes of action included: failure to engage in the interactive process, failure to make reasonable accommodation, failure to offer family medical leave and denial of such leave, retaliation, and intentional infliction of emotional distress. Defendant moved for summary judgment, asserting that plaintiff's causes of action were barred by res judicata and collateral estoppel because administrative proceedings established that defendant had good cause for plaintiff's termination, and plaintiff had not challenged or overturned the administrative decision by judicial action. The trial court concluded wrongful termination was an essential element of each cause of action as pled; because the administrative determination of good cause for discharge was final and binding on plaintiff, she could not establish the element of wrongful termination for any cause of action alleged in the first amended complaint. Accordingly, the trial court granted summary judgment.
The first amended complaint alleges plaintiff suffered from chronic back pain and was diagnosed with fibromyalgia. As a reasonable accommodation of her disability under the Fair Employment and Housing Act (FEHA), plaintiff was permitted to begin work at a later time than other employees. When her supervisor was replaced, the new supervisor wrote her a letter of reprimand, asserting that she was late to work on numerous occasions. On July 31, 2008, while she was working, two young women who were not students assaulted and battered plaintiff. Plaintiff was subsequently placed on administrative leave while the incident was investigated. Her employment was terminated for being discourteous to the public; she pursued an administrative appeal of her termination. Plaintiff was criminally prosecuted for assault with a deadly weapon or by force likely to do great bodily injury based on the same incident, but was acquitted. Plaintiff did not seek judicial review of the administrative decision, allegedly because she did not receive notice of it and it therefore was not final.
Defendant's motion for summary judgment presented evidence that, on July 31, 2008, plaintiff was involved in a physical altercation with Tiffany Medrano (the sister of plaintiff's office assistant) and Elizabeth Ines. The evidence regarding who initiated the altercation was conflicting. Plaintiff and her office assistant told campus police that Medrano hit her as plaintiff was escorting Medrano and Ines from the office after they caused a disturbance there. Medrano and Ines accused plaintiff of hitting Medrano with a laptop charger cord and attempting to strangle Ines with the same cord. The campus police report noted a large welt over Medrano's left eye and a small bump on plaintiff's upper lip. After investigation, defendant notified plaintiff that disciplinary charges were being brought against her, and defendant was proposing to terminate her employment for discourteous treatment of the public and a willful act of conduct undertaken in bad faith, which is of such a nature that it causes discredit to defendant. After a hearing with the dean of human resources and legal affairs, John Bratsch, in which plaintiff presented her defense to the charges, plaintiff was notified that her employment was terminated. Plaintiff appealed, and a hearing was held before the superintendent, Dr. William Scroggins; he upheld the decision to terminate plaintiff's employment. Plaintiff appealed further, and a hearing was held before the Board of Trustees, which upheld plaintiff's dismissal. The board's decision was mailed to plaintiff on December 10, 2008. After another board meeting, the signed and adopted decision was mailed to plaintiff on January 13, 2009. Plaintiff did not file a petition for a writ of administrative mandate to attempt to overturn the board's decision.
DISCUSSION
I. Standard of Review
Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In moving for summary judgment, a "defendant ... has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to that cause of action." (§ 437c, subd. (p)(2).) Once the moving defendant has met its initial burden, "the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." (§ 437c, subd. (p)(2).)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
"As a summary judgment motion raises only questions of law regarding the construction and effect of supporting and opposing papers, this court independently applies the same three-step analysis required of the trial court. We identify issues framed by the pleadings; determine whether the moving party's showing established facts that negate the opponent's claim and justify a judgment in the moving party's favor; and if it does, we finally determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.]" (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Statutory interpretation presents a question of law, which we review de novo. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 431; Burden v. Snowden (1992) 2 Cal.4th 556, 562.)
II. Collateral Estoppel
Collateral estoppel, which is also known as issue preclusion, "prevents 'relitigation of issues argued and decided in prior proceedings.' [Citation.] The threshold requirements for issue preclusion are: (1) the issue is identical to that decided in the former proceeding, (2) the issue was actually litigated in the former proceeding, (3) the issue was necessarily decided in the former proceeding, (4) the decision in the former proceeding is final and on the merits, and (5) preclusion is sought against a person who was a party or in privity with a party to the former proceeding. [Citation.] When those requirements are met, the propriety of preclusion depends upon whether application will further the public policies of 'preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation.' [Citation.]" (Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481 (Castillo).) Issue preclusion applies to issues adjudicated in an administrative proceeding by an agency acting in a judicial capacity, by preventing their relitigation in a judicial proceeding. (Ibid.)
In its motion for summary judgment, defendant contended all of plaintiff's causes of action were barred by the prior administrative determination that the termination of plaintiff's employment was justified on the grounds asserted in that proceeding. Defendant contended that an improper or wrongful termination was an essential element of each cause of action as pled by plaintiff and, because she was bound by the administrative determination that her dismissal was proper, she could not establish all the essential elements of any of her causes of action. The trial court agreed and granted summary judgment.
A. Identical issues
The first prerequisite to application of issue preclusion is that the issue presented in the current case be identical to that decided in the prior proceeding. (Castillo, supra, 92 Cal.App.4th at p. 481.) In Castillo, the plaintiff was dismissed from his employment with the City of Los Angeles, assertedly because of unauthorized absences and tardiness. He appealed to the civil service commission, which upheld the dismissal; the plaintiff sought review by petitioning for a writ of mandate in the superior court. While those proceedings were pending, the plaintiff also filed claims with the Department of Fair Employment and Housing (DFEH), alleging he was dismissed because of his age or national origin. When he received a right to sue letter, he filed a civil action for wrongful discharge. After the plaintiff's writ petition was denied, the city moved for and was granted summary judgment in the wrongful discharge case on collateral estoppel grounds.
All of Castillo's causes of action "raise[d] the question of whether Castillo's discharge was wrongful because it was for the improper reason of discrimination based on age, race, or national origin, or proper because it was for unsatisfactory attendance and failure to improve." (Castillo, supra, 92 Cal.App.4th at pp. 480-481.) The administrative decision included findings that the evidence established Castillo's continued unsatisfactory attendance and failure to improve, and Castillo's discharge was appropriate. The court stated:
"The issue, wrongfulness of the discharge, is identical in the administrative proceeding and this suit. 'The "identical issue" requirement addresses whether "identical factual allegations" are at stake in the two proceedings ....' [Citation.] In his complaint, Castillo alleges that he was entitled to take time off, gave proper notice when he did take time off, and that he was discharged for conduct that was not even punished when done by people of other ages and races. Before the hearing examiner, City alleged unauthorized absences and Castillo alleged disparate treatment and discrimination. The allegations in the two proceedings are thus identical." (Castillo, supra, 92 Cal.App.4th at pp. 481-482.)
Similarly, here, defendant terminated plaintiff for "discourteous treatment of the public or other employees" on the basis of the July 31, 2008, incident. The decision of the board on plaintiff's appeal concluded plaintiff "did engage in discourteous treatment towards Tiffany Medrano and Elizabeth Ines" and upheld her dismissal. Plaintiff's first amended complaint alleges, in part, that she was wrongfully terminated from her employment because of her disability or in retaliation for requesting reasonable accommodation for her disability. Defendant asserted that plaintiff was terminated for a legitimate reason—because of her conduct in the July 31, 2008, incident—and not because of any discrimination or retaliation. As in Castillo, "[t]he issue, wrongfulness of the discharge, is identical in the administrative proceeding and this suit." (Castillo, supra, 92 Cal.App.4th at p. 481.)
Plaintiff seems to contend the issues presented in this case are not identical to those decided in the administrative proceeding, and issue preclusion does not apply, because her discrimination and retaliation claims were not litigated in the administrative proceeding. This argument confuses issue preclusion (collateral estoppel) with claim preclusion (res judicata). When an employee challenges disciplinary action taken against him or her on the ground it was discriminatory or retaliatory, two distinct rights or interests are implicated: "The primary right protected by the state civil service system is the right to continued employment, while the primary right protected by FEHA is the right to be free from invidious discrimination and from retaliation for opposing discrimination." (George v. California Unemployment Ins. Appeals Board (2009) 179 Cal.App.4th 1475, 1483.) "The primary right involved determines the scope of the cause of action, which bears on whether claim preclusion is proper. [Citation.] However, the scope of the cause of action in a prior proceeding has no bearing on whether a party should be allowed to relitigate an issue." (Castillo, supra, 92 Cal.App.4th at p. 486, italics added.) The Castillo court concluded:
"In sum, because the prerequisites of issue preclusion are met, and because the public policy considerations favor application of the doctrine, Castillo is precluded from relitigating the issue of whether his discharge was wrongful. He therefore is bound by the hearing examiner's finding, confirmed by the Board, that his discharge was appropriate. Because he cannot prove wrongfulness of discharge, which is an element of his causes of action, City is entitled to judgment as a matter of law. Summary judgment is appropriate." (Castillo, supra, 92 Cal.App.4th at pp. 486-487.)
In George v. California Unemployment Ins. Appeals Board, supra, 179 Cal.App.4th 1475, the court also recognized that collateral estoppel may apply when an employee files a civil action after challenging disciplinary actions in an administrative proceeding. In George, the employer took disciplinary action against a civil service employee and she challenged the action in administrative proceedings. She did not raise any FEHA statutory claims in those proceedings. The superior court denied her petition for a writ, which challenged the administrative decision, and she filed a civil action alleging the disciplinary actions were intended to retaliate against her for filing a DFEH complaint. The defendant moved for summary judgment on the ground her action was barred by res judicata. The court noted there was no requirement that the employee raise her FEHA claims in the administrative review process, and res judicata did not bar the plaintiff from raising them in a later court action, after challenging the disciplinary action in the administrative proceedings. (Id. at p. 1484.) Collateral estoppel, however, may preclude a later retaliation claim, if the issues decided in the administrative proceedings eliminate an essential element of the employee's claim. (Id. at pp. 1479, 1486.) The administrative decision had upheld some of the disciplinary actions taken against the plaintiff, but had found that other actions were not justified; although the administrative decision was final and binding on the plaintiff, it was not the equivalent of a finding that all of the discipline imposed was just, proper, and nonretaliatory. (Id. at pp. 1487-1488.) Consequently, it did not dispose of the plaintiff's retaliation claim in its entirety, and summary judgment was properly denied. (Id. at p. 1488.)
George is distinguishable. The administrative decision in George was essentially a mixed result, determining that some of the disciplinary actions imposed were valid and justified and others were not. In the present case, the only disciplinary action considered in the administrative proceeding was the termination of plaintiff's employment. The decision on that issue was wholly in favor of defendant. To the extent a contrary determination of that issue is necessary in order for plaintiff to prevail on her current causes of action, those causes of action present an issue identical to that presented in the administrative proceedings for purposes of applying collateral estoppel.
B. Issue actually litigated and necessarily decided; same parties
The evidence presented in support of defendant's motion for summary judgment established that the second and third prerequisites to application of issue preclusion were met. The issue of the propriety of plaintiff's termination was actually litigated and necessarily decided in the administrative proceeding. The fifth prerequisite is also met, because plaintiff was a party to both the administrative proceeding and this action.
C. Final decision
Defendant asserted the fourth prerequisite—a final decision on the merits—was met, because the Board of Trustees issued its final administrative decision, and plaintiff failed to timely seek judicial review of that decision by filing a petition for a writ of mandate pursuant to section 1094.5. Plaintiff contends the fourth prerequisite has not been met, because the decision in the administrative proceeding still is not final, and will not become final until defendant has mailed her a copy of the Board's decision, along with a certificate of mailing indicating the date on which it was mailed and a notice regarding the time for filing a petition for a writ, as required by section 1094.6, subdivision (f).
Under section 1094.5, a party may petition for a writ of mandate "inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer." (§ 1094.5, subd. (a).) The time for filing the petition is set out in section 1094.6:
"(a) Judicial review of any decision of a local agency, other than school district, as the term local agency is defined in Section 54951 of the Government Code, or of any commission, board, officer or agent thereof, may be had pursuant to Section 1094.5 of this code only if the petition for writ of mandate pursuant to such section is filed within the time limits specified in this section.
"(b) Any such petition shall be filed not later than the 90th day following the date on which the decision becomes final. If there is no provision for reconsideration of the decision, or for a written decision or written findings supporting the decision, in any applicable provision of any statute, charter, or rule, for the purposes of this section, the decision is final on the date it is announced.... If there is a provision for reconsideration, the decision is final for purposes of this section upon the expiration of the period during which such reconsideration can be sought; provided, that if reconsideration is sought pursuant to any such provision the decision is final for the purposes of this section on the date that reconsideration is rejected. If there is a provision for a written decision or written findings, the decision is final for purposes of this section upon the date it is mailed by first-class mail, postage prepaid, including a copy of the affidavit or certificate of mailing, to the party seeking the writ.... [¶] ... [¶]
"(f) In making a final decision as defined in subdivision (e), the local agency shall provide notice to the party that the time within which judicial review must be sought is governed by this section." (§ 1094.6, subd. (a), (b), (f).)
Initially we note that we need not determine whether a community college district is a "school district" exempted from the provisions of section 1094.6. Even if section 1094.6 applies, we conclude that a final, binding administrative decision exists and precludes plaintiff from establishing that her termination was wrongful. To the extent her claims include wrongful termination as an essential element, that element, and hence those claims, cannot be established.
Plaintiff interprets section 1094.6, subdivisions (b) and (f) to mean that the decision of an administrative agency is not final until it is mailed to the party seeking the writ, along with a copy of an affidavit or certificate of mailing and a notice that the party's time to seek judicial review is governed by section 1094.6. She contends the evidence submitted in support of the motion for summary judgment did not include any affidavit or certificate of mailing, and there was no evidence she was given notice of her time to seek judicial review of the decision. Thus, plaintiff contends the decision is not yet final and her time for filing a writ petition has not yet commenced.
We first note that neither party has identified any statutory or other provisions applicable to the administrative proceedings that either require a written decision or findings or permit a decision that is not written. Thus, neither has established whether the applicable rule in section 1094.6, subdivision (b), is that "the decision is final on the date it is announced," or that "the decision is final for purposes of this section upon the date it is mailed by first-class mail, postage prepaid, including a copy of the affidavit or certificate of mailing, to the party seeking the writ." Plaintiff assumes that, because a written decision was issued, the latter rule applies. Defendant argues that the decision was both announced in plaintiff's presence and mailed to her twice, so "there would seem to be no question that the decision was final and subject to mandamus review pursuant to § 1094.5." Defendant does not address the requirement that a copy of the affidavit or certificate of mailing be included with the decision.
If no written decision was required, then the Board's decision was final when announced. Defendant presented undisputed facts indicating plaintiff attended the Board hearings and was personally present on December 9, 2008, when the Board read its decision upholding her termination. Defendant did not, however, present any facts or law demonstrating that a written decision was not required. Thus, it failed to carry its burden of establishing that the Board's decision became final when announced.
Plaintiff's response to defendant's separate statement of undisputed facts listed these facts as disputed, but referred to no evidence that controverted the assertion that she was present and that the Board announced its decision on December 9, 2008.
In Donnellan v. City of Novato (2001) 86 Cal.App.4th 1097 (Donnellan), the petitioner filed his petition for a writ of mandate to challenge an administrative decision 102 days after the city mailed the petitioner a copy of the decision accompanied by a dated cover letter, but without an affidavit or certificate of mailing as required by section 1094.6, subdivision (b). The trial court found the city had substantially complied with the service requirements and denied the petition as untimely. (Donnellan, supra, 86 Cal.App.4th at pp. 1100-1101.) The appellate court reversed, concluding strict compliance with the statute was required. The statute required that the mailed decision "includ[e] a copy of an affidavit or certificate of mailing"; the purpose of the requirement was to establish the fact and date of mailing and to inform the recipient of the effective date of the mailing, which triggered the commencement of the 90-day period for filing a writ petition. (Id. at p. 1105.) Section 1094.6 required the mailing to "include a written statement verified by oath or affirmation, or a written statement attesting to the date that the decision was mailed to the party by first class mail, postage prepaid." (Donnellan, at p. 1106.) The unverified cover letter did not satisfy that requirement, so the city did not comply with the mailing requirement prior to the filing of the petition, which the court held was timely filed. (Id. at p. 1107.) The court also rejected an after-the-fact declaration, which stated that the declarant had mailed the decision to the petitioner on a specified date, because the statute required the certificate of mailing to accompany the mailed decision. (Ibid.) The court likewise rejected evidence of the petitioner's actual receipt of the decision as demonstrating compliance with the statute, because the statute required that the petitioner be given actual notice of the date of mailing, which was not shown. (Ibid.) The court in Donnellan did not consider when the administrative decision became final or what time restrictions applied in the absence of compliance with section 1094.6, subdivision (b).
Defendant did not establish as an undisputed fact that it mailed the decision to plaintiff "by first-class mail, postage prepaid, including a copy of the affidavit or certificate of mailing." (§ 1094.6, subd. (b).) Defendant presented facts that, on December 8 and 9, 2008, a hearing was held by its board of trustees to review the reasons for plaintiff's termination. On December 10, 2008, defendant sent a copy of the board's Written Findings, Conclusions, and Decision "by certified mail." On January 12, 2009, the board of trustees officially adopted and signed the Written Findings, Conclusions, and Decision, and on January 13, 2009, sent that document to plaintiff "by certified mail." Defendant received signed acknowledgement cards verifying that plaintiff received both documents. The evidence in support of the receipt of the acknowledgement cards was the declaration of an employee of defendant, who stated they were received. The acknowledgement cards themselves were not offered as evidence. Thus, the evidence indicated defendant did not strictly comply with the requirement that it mail a copy of the decision to the employee "by first-class mail, postage prepaid, including a copy of the affidavit or certificate of mailing."
In Cummings v. City of Vernon (1989) 214 Cal.App.3d 919 (Cummings), the court considered the effect of the administrative decision's failure to provide the petitioner with the notice required by section 1094.6, subdivision (f), that the time within which judicial review must be sought is governed by section 1094.6. The court summed up its holding as follows: "Construing section 1094.6, we hold that the 90-day period in subdivision (b) does not commence to run until the notice required by subdivision (f) is given." (Cummings, supra, 214 Cal.App.3d at p. 920.) In explaining its decision, however, it concluded the administrative decision did not become final until that notice was given. In Cummings, the city had made its administrative decision on December 9, and sent notice to the petitioner, including the notice required by section 1094.6, subdivision (f), on December 19. The petitioner filed his writ petition more than 90 days after the decision was made, but less than 90 days after the date of notice. The court noted that section 1094.6, subdivision (b), defines when the administrative decision becomes final. Harmonizing that definition with the language in section 1094.6, subdivision (f), which states that "[i]n making a final decision" notice of the time for judicial review must be given, the court concluded "that providing the notice is an essential condition for the decision to become final." (Cummings, at p. 922.) The court also opined that, because section 1094.6 "drastically reduces the statute of limitations," which, prior to enactment of section 1094.6, had been three or four years, "we should avoid an interpretation which shortens the period even further." (Cummings, at p. 923.) The court concluded the 90-day period for filing a writ petition challenging the administrative decision began to run on the date the notice required in section 1094.6, subdivision (f), was given.
"If the period in section 1094.6 were to run from the date of the decision regardless of the date of notice, any substantial delay in giving the notice would, as a practical matter, substantially reduce the actual time available for preparing a petition. Since section 1094.6 benefits local agencies by reducing the statute of limitations, requires local agencies to give the notice, and impliedly prohibits local agencies from adopting a shorter limitation period, it should not be interpreted in a way which permits local agencies to shorten the period even further by delaying the notice. This is avoided if the local agency's decision does not become final for the purpose of subdivision (b) until the notice required by subdivision (f) is given. This interpretation encourages prompt notice, assures that all plaintiffs will have substantially all of the 90-day period in which to prepare, and avoids uncertain and unnecessary case-by-case litigation over whether the delay was so prejudicial as to give rise to estoppel." (Cummings, supra, 214 Cal.App.3d at p. 923.)
A subsequent case rejected Cummings' conclusion that finality of the administrative decision depends upon giving the notice required by section 1094.6, subdivision (f). In El Dorado Palm Springs, Ltd. v. Rent Review Commission (1991) 230 Cal.App.3d 335 (El Dorado), the city issued its decision denying the petitioner's application for a hardship rent increase under the city's rent control ordinance. The petitioner filed a writ petition and respondents contended it was untimely. The court disagreed. The petition was filed more than 90 days after the city's final decision was issued, but that decision did not include the notice that section 1094.6 would govern the time for filing a writ petition. After citing the holding in Cummings, the court concluded:
"While we agree with Cummings that the 90-day statute of limitations of section 1094.6 does not begin to run until the subdivision (f) notice is given, we do not agree that that notice must be given in order that the local agency's decision be deemed final for the purpose of subdivision (b). There are two reasons for our disagreement. First, it seems to us that one must give section 1094.6 a strained reading to conclude that that section uses the phrase 'final decision' to mean anything other than, or
more than, the substantive decision reached, and then issued in final form, by a local agency following the completion of that agency's administrative decision-making processes. Second, taken to its (il)logical conclusion, Cummings's position on 'finality' would permit a local agency to preclude a decision's ever becoming final by the simple expedient of never issuing a notice pursuant to subdivision (f). In light of the fact that only 'final' administrative decisions are subject to judicial review [citation], Cummings's position on 'finality' results in a state of affairs wherein the mere failure of a local agency to give notice pursuant to subdivision (f) effectively insulates an agency decision from judicial review. This, clearly, is not a result intended by our Legislature.
"It seems to us that the better course in interpreting section 1094.6 is to avoid any attempt to give 'finality' a strained reading and, instead, to simply read the section as containing a 90-day statute of limitations that is tolled until such time as the subdivision (f) notice is given. This interpretation of the section best achieves the overall harmonization of the section's various subdivisions. [Citation.]" (El Dorado, supra, 230 Cal.App.3d at pp. 345-346.)
The court observed that, using this interpretation, the aggrieved party would not need to wait to seek judicial review until the section 1094.6, subdivision (f), notice was given, because the administrative decision would be final as soon as the agency issued its decision in final form. (El Dorado, supra, 230 Cal.App.3d at p. 346.) Further, the aggrieved party would not have an open-ended time within which to seek judicial review because, while the 90-day limitations period would be tolled, the doctrine of laches would still apply to the timeliness of that party's effort to secure judicial review. (Ibid.) The court concluded the petition was not barred by the 90-day limitations period set out in section 1094.6. (El Dorado, at p. 347.)
We find the result in El Dorado more persuasive than that in Cummings, with respect to whether the failure to give notice that the time for judicial review is limited by section 1094.6 affects the finality of the administrative decision. Section 1094.6, subdivision (f), states that, "[i]n making a final decision as defined in subdivision (e)," the specified notice must be given. Subdivision (e) provides: "As used in this section, decision means a decision subject to review pursuant to Section 1094.5, suspending, demoting, or dismissing an officer or employee, revoking, denying an application for a permit, license, or other entitlement, imposing a civil or administrative penalty, fine, charge, or cost, or denying an application for any retirement benefit or allowance." Thus, the reference in subdivision (f) to "a final decision as defined in subdivision (e)" simply identifies the type of decisions to which the notice requirement applies. It does not define when the administrative decision becomes final.
In Johnson v. City of Loma Linda (2000) 24 Cal.4th 61 (Johnson), the city informed the plaintiff he was being laid off from his position as assistant city manager due to budgetary constraints. The plaintiff unsuccessfully pursued his administrative remedies. Believing his termination was actually in retaliation for opposing discriminatory practices that violated the FEHA, the plaintiff filed a DFEH complaint, then pursued a joint petition for a writ of administrative mandate and civil action alleging violations of the FEHA. The trial court granted the city's motion for summary judgment, ruling that the plaintiff was precluded by laches from filing a writ petition to challenge the administrative decision and, because he failed to bring a timely judicial challenge to that decision, he was bound by the administrative findings, which defeated his causes of action. (Id. at pp. 66-67.) The court stated: "We note that Code of Civil Procedure section 1094.6 requires that a petition for a writ of administrative mandate to obtain judicial review of a decision dismissing a city officer or employee be filed within 90 days of the date the decision becomes final if the city so notifies the employee. [Citation.] Although this statute is not applicable here because the City apparently did not notify plaintiff of the statutory 90-day period just mentioned, it underscores the significance of timeliness in challenging personnel decisions such as the one at issue here." (Johnson, supra, 24 Cal.4th at p. 68.) The court then went on the apply the doctrine of laches and concluded the plaintiff was barred from seeking judicial review of the administrative decision.
From these cases, we conclude that it is not reasonable to interpret section 1094.6, subdivisions (b) and (f), to mean that a written administrative decision never becomes final and binding, or subject to judicial review, until the administrative agency mails a copy of the decision to the employee by first class mail with a copy of a certificate of mailing and a notice that section 1094.6 governs the time for seeking judicial review. As discussed in El Dorado, supra, 230 Cal.App.3d. 335, such an interpretation would permit the agency to postpone or prevent finality and subsequent review simply by failing to mail the decision to the plaintiff in the proper form; it would also permit the employee to proceed with a civil action like this one, without fear that collateral estoppel or res judicata would be successfully invoked to preclude a result inconsistent with the administrative decision. As Johnson, supra, 24 Cal.4th at page 68 indicates, the short 90-day time limit for seeking judicial review of an administrative decision "underscores the significance of timeliness in challenging personnel decisions," and suggests the Legislature did not intend noncompliance with section 1094.6, subdivisions (b) and (f), to leave disputes over employment terminations in limbo indefinitely. Consequently, if the administrative agency fails to give notice in compliance with section 1094.6, subdivisions (b) and (f), the 90-day time limit for seeking judicial review of the decision by writ of administrative mandate does not apply or is tolled, but the aggrieved party is still required to act promptly to challenge the decision. A long, unexplained delay in filing the writ petition may result in application of the doctrine of laches to bar the writ proceeding.
The evidence presented by defendant demonstrated that the Board mailed its final decision to plaintiff by certified mail no later than January 13, 2009. The mailing did not comply with the requirements of section 1094.6, subdivisions (b) and (f), so the shortened statute of limitations for challenging the administrative decision by petition for writ of administrative mandate did not apply; the administrative decision was nonetheless final and binding on the parties, unless and until it was invalidated in further proceedings.
"[U]nless a party to a quasi-judicial proceeding challenges the agency's adverse findings made in that proceeding, by means of a mandate action in superior court, those findings are binding in later civil actions. This requirement of exhaustion of judicial remedies is to be distinguished from the requirement of exhaustion of administrative remedies. [Citation.] Exhaustion of administrative remedies is 'a jurisdictional prerequisite to resort to the courts.' [Citation.] Exhaustion of judicial remedies, on the other hand, is necessary to avoid giving binding 'effect to the administrative agency's decision, because that decision has achieved finality due to the aggrieved party's failure to pursue the exclusive judicial remedy for reviewing administrative action.' [Citation.]" (Johnson, supra, 24 Cal.4th at pp. 69-70, fn. omitted.)
D. Public policy
Even if the five prerequisites to collateral estoppel are met, "the propriety of preclusion depends upon whether application will further the public policies of 'preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation.' [Citation.]" (Castillo, supra, 92 Cal.App.4th at p. 481.) As in Castillo, "allowing [plaintiff] to relitigate the question of wrongful discharge would diminish the value of the administrative process that concluded that [her] discharge was proper, especially where, as here, an employee must challenge the action administratively before filing suit." (Id. at p. 483.) Applying collateral estoppel would promote judicial economy by preventing repetitive litigation and would protect the parties from vexatious litigation.
E. Conclusion
Defendant demonstrated the necessary elements to establish collateral estoppel and preclude plaintiff from relitigating the issue of the propriety of the termination of her employment. The trial court correctly determined that she cannot establish the element of wrongful termination for any of her causes of action. We next consider whether wrongful termination is an essential element of all of plaintiff's causes of action, such that all are barred by the adverse administrative decision, as the trial court concluded.
III. Application to Plaintiff's Causes of Action
Defendant's demurrer to the first amended complaint's causes of action for breach of the implied covenant not to terminate without good cause, breach of the implied covenant of good faith and fair dealing, and wrongful termination in violation of public policy was sustained without leave to amend. Consequently, defendant's motion for summary judgment addressed only the remaining causes of action: (3) failure to engage in the interactive process, (4) failure to make reasonable accommodation, (5) failure to offer family medical leave, (7) retaliation, and (8) intentional infliction of emotional distress. The trial court concluded: "[A]ll causes of action of the first amended complaint raise the essential question of whether Plaintiff's discharge was improper based on discrimination due to her physical disability. Plaintiff asserts no real claim for damages that is separate and apart from any damages arising from her loss of employment." Accordingly, it granted summary judgment, finding all of plaintiff's causes of action were barred by collateral estoppel and failure to exhaust administrative remedies.
No failure to exhaust administrative remedies was established. Plaintiff appealed her termination through three levels of administrative appeals. The parties appear to agree that the next avenue of review of the decision was by petition for writ of administrative mandate, which is a judicial remedy. (See Johnson, supra, 24 Cal.4th at pp. 69-70.)
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"'A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. [Citation.]'" (Cortez v. Vogt (1997) 52 Cal.App.4th 917, 926.) The defendant may either show that one or more elements of each cause of action cannot be established or establish an affirmative defense to each cause of action. (§ 437c, subd. (p)(2).) The defendant may show that one or more elements of a cause of action cannot be established either by conclusively negating an element of the cause of action or by presenting evidence showing that the plaintiff does not possess, and cannot reasonably obtain, evidence needed to establish the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855 (Aguilar).) The defendant may make the latter showing "through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing" (Id. at p. 855, fn. omitted) or by presenting the plaintiff's "factually devoid discovery responses." (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.) "'On summary judgment motions, the pleadings always define the issues.'" (Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1120.)
A. Third and fourth causes of action
Plaintiff's third and fourth causes of action allege violations of provisions of the FEHA, Government Code section 12940, subdivisions (n) and (m), respectively. These subdivisions make it an unlawful employment practice for an employer "to fail to engage in a timely, good faith, interactive process with the employee ... to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . with a known physical or mental disability or known medical condition" (Gov. Code, § 12940, subd. (n)), or "to fail to make reasonable accommodation for the known physical or mental disability of an ... employee" (Gov. Code, § 12940, subd. (m)).
The essential elements of a cause of action for failure to engage in an interactive process are: (1) the plaintiff has a disability under the FEHA, (2) the plaintiff requested that the plaintiff's employer make reasonable accommodation for that disability so the plaintiff would be able to perform the essential job requirements, (3) the plaintiff was willing to participate in an interactive process to determine whether reasonable accommodation could be made, (4) the employer failed to participate in a timely, good faith interactive process with the plaintiff, (5) the plaintiff was harmed, and (6) the employer's failure to engage in a good faith interactive process was a substantial factor in causing the plaintiff's harm. (CACI No. 2546.) The essential elements of a cause of action for failure to reasonably accommodate a disability are: (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, (3) the employer failed to reasonably accommodate the plaintiff's disability, (4) the plaintiff was harmed, and (5) the employer's failure to provide a reasonable accommodation was a substantial factor in causing plaintiff's harm. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1009-1010; CACI No. 2541.)
Wrongful termination is not an essential element of either cause of action. If the only harm alleged in plaintiff's third and fourth causes of action was the loss of her employment with defendant, then proof of wrongful termination would have been essential to those causes of action. The harm alleged in her third and fourth causes of action is not limited to wrongful termination, however. The third and fourth causes of action include a broad allegation that plaintiff "has sustained, and will continue to sustain substantial losses in earnings and other employment benefits and has suffered and will continue to suffer humiliation, emotional distress, and mental and physical pain, anguish, and injury." Defendant made no showing that the harm plaintiff suffered or the damages she seeks to recover resulted only from the loss of her job. It presented no facts in its separate statement and no discovery responses or other evidence demonstrating more specifically what damages plaintiff sustained or is seeking in this action. Consequently, defendant has not demonstrated that the third and fourth causes of action are necessarily barred by plaintiff's inability to relitigate the issue of the wrongfulness of her discharge from employment.
B. Fifth cause of action
The fifth cause of action of plaintiff's first amended complaint alleges defendant failed to advise plaintiff of her rights under the California Family Rights Act of 1991 (Gov. Code, § 12945.2), preventing her from taking advantage of them. Government Code section 12945.2 provides that it is an unlawful employment practice for an employer to refuse to grant a request by a qualified employee for family care and medical leave, which includes "[l]eave because of an employee's own serious health condition that makes the employee unable to perform the functions of the position of that employee." (Gov. Code, § 12945.2, subds. (a), (c)(3)(C).) Wrongful termination of employment is not an essential element of a cause of action for violation of Government Code section 12945.2. (See CACI No. 2600.) The fifth cause of action also alleges that plaintiff "has sustained an adverse employment action in working without leave and/or accommodation, and will continue to sustain substantial losses in earnings and other employment benefits and has suffered and will continue to suffer humiliation, emotional distress, and mental and physical pain, anguish, and injury." Again, defendant has not shown through discovery responses or other evidence that the harm plaintiff suffered or the damages she seeks to recover resulted only from the loss of her job. Consequently, this cause of action is not necessarily barred by the binding administrative determination that plaintiff's discharge was not wrongful.
C. Seventh cause of action
The seventh cause of action alleges retaliation. To establish retaliation, the plaintiff must prove he or she engaged in a protected activity, the employer subjected the plaintiff to an adverse employment action, there was a causal link between the protected activity and the employer's action, the plaintiff was harmed, and the employer's conduct was a substantial factor in causing the plaintiff's harm. (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 367; CACI No. 2505.) If the employer offers a legitimate, nonretaliatory reason for the adverse employment action, the employee must then establish intentional retaliation, by showing that the employer's reason was a mere pretext or was not the true reason for the adverse employment action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356.)
The seventh cause of action alleges defendant retaliated against plaintiff for seeking a reasonable accommodation for her disability, by wrongfully terminating her employment, by using the July 31, 2008, incident as a pretext to terminate her and have her criminally prosecuted, by using the incident as a pretext to hold an administrative termination proceeding, by denying or failing to offer her family care and medical leave, and by denying her accommodation. Like the third, fourth, and fifth causes of action, the seventh cause of action alleges plaintiff "has sustained, and will continue to sustain substantial losses in earnings and other employment benefits and has suffered and will continue to suffer humiliation, emotional distress, and mental and physical pain, anguish, and injury."
Plaintiff is collaterally estopped from relying on the termination of her employment with defendant as the adverse employment action for this cause of action. Her retaliation cause of action, however, alleges other acts as adverse employment actions. Defendant argues only that this cause of action is barred because plaintiff cannot relitigate the issue of the wrongfulness of her termination, she was terminated for a legitimate reason, which plaintiff has not rebutted, and there was no causal link between plaintiff's request for accommodation and her termination. Defendant's motion for summary judgment or summary adjudication did not address whether any of the other acts alleged as adverse employment actions were sufficient to support the cause of action. A defendant may be granted summary judgment only if, through its motion, the defendant establishes that it is entitled to judgment as a matter of law. (§ 437c, subd. (c).) "'As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact.'" (MacKay v. Superior Court (2010) 188 Cal.App.4th 1427, 1435.) Defendant's motion did not present undisputed facts that entirely negated an essential element of plaintiff's seventh cause of action.
D. Eighth cause of action
Plaintiff's eighth cause of action for intentional infliction of emotional distress alleges that defendant wrongfully terminated her for seeking an accommodation, with the intention of causing her serious emotional distress; acting "with extreme and outrageous conduct and/or reckless disregard for the rights of the Plaintiff," defendant also wrongfully terminated her and sought to have her criminally prosecuted for a felony for acting in self-defense during an on campus altercation, in an effort to deter her from pursuing her legal rights against defendant. Plaintiff alleges she was fired before her criminal trial, and was later acquitted. She "has sustained, and will continue to sustain substantial losses in earnings and other employment benefits and has suffered and will continue to suffer humiliation, anguish, embarrassment, emotional distress, and mental and physical pain, and injury." Defendant did not demonstrate through evidence that the only injury plaintiff actually sustained was the loss of her job, or that the only damages she is seeking to recover in this action are those resulting from the loss of her employment. Consequently, defendant did not meet its burden of persuasion that plaintiff's eighth cause of action is without merit because of the binding administrative determination that plaintiff's discharge was not wrongful.
"[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) Because defendant's showing that the administrative decision was binding on plaintiff did not necessarily dispose of all of her causes of action as alleged, defendant failed to meet its burden and was not entitled to summary judgment on that basis.
IV. Summary Adjudication
A. Fifth cause of action
In its motion, as an alternative to summary judgment, defendant sought summary adjudication of the fifth cause of action on the ground plaintiff was not denied leave under the statute because she did not request it. Defendant asserted it gave notice of employees' rights under the California Family Rights Act (CFRA) by posting a notice in the Human Resource office and by including information in the Classified School Employees Association (CSEA) Master Agreement. Employers are required to "provide notice to their employees of the right to request CFRA leave" and to "post the notice in a conspicuous place or places where employees tend to congregate." (Cal. Code Regs., tit. 2, § 7297.9, subd. (a).) The regulation sets out the suggested text of such a notice. (Cal. Code Regs., tit. 2, § 7297.9, subd. (d).) Employers are also required to include a description of the CFRA leave in their employee handbooks, and are "encouraged to give a copy of the notice to each current and new employee." (Cal. Code Regs., tit. 2, § 7297.9, subd. (b).) Plaintiff responded to defendant's assertedly undisputed facts by denying that she was aware of her family leave rights and asserting that notice was not posted in a conspicuous place or given to her.
Defendant's statement of undisputed facts did not include the text of any notice of CFRA rights it posted or included in the CSEA Master Agreement. Defendant offered only the conclusory declaration of defendant's Dean of Human Resources/Legal Affairs, which stated that defendant posts information about "certain laws and equal employment opportunity rights of employees in a conspicuous place in the Human Resources office," including information about family medical leave under state and federal law. He also stated the CSEA Master Agreement "contains information about employees' rights to family medical leave." Defendant presented no evidence that the Human Resources office is a place where employees tend to congregate; it presented no evidence concerning the availability of the CSEA Master Agreement to employees. Defendant presented no evidence that it specifically notified plaintiff of her CFRA rights when she was hired, at any point after she was hired, or after she asked to be allowed to start work later than usual as an accommodation for her fibromyalgia. From the limited information presented in defendant's motion, we cannot say as a matter of law that defendant complied with the applicable regulations and posted an adequate notice "in a conspicuous place or places where employees tend to congregate," or that plaintiff actually knew or should have known of her rights and failed to request leave under the CFRA. Consequently, summary adjudication of the fifth cause of action would not be appropriate on the ground asserted.
B. Seventh cause of action
Defendant moved for summary adjudication of the seventh cause of action on two grounds: (1) it had a legitimate nondiscriminatory reason for terminating plaintiff's employment and (2) plaintiff cannot establish a causal link between her termination and her alleged protected activity. Both arguments again assume that if plaintiff was not wrongfully terminated, then her cause of action is defeated. As discussed previously, the seventh cause of action alleges retaliatory acts other than termination of plaintiff's employment. Consequently, even if defendant's arguments were correct, they would not necessarily dispose of plaintiff's entire cause of action and therefore summary adjudication could not be granted. (§ 437c, subd. (f)(1).)
C. Eighth cause of action
Defendant also moved for summary adjudication of the eighth cause of action. The elements of a cause of action for intentional infliction of emotional distress are: "'"'(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct....' Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." [Citation.]'" (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)
Defendant asserted there was no severe or outrageous conduct by anyone at the college, because personnel management actions, including termination of employment, are not sufficiently extreme to constitute the extreme and outrageous conduct necessary for a cause of action for intentional infliction of emotional distress. In support of its argument, defendant presented only two undisputed facts: that plaintiff was involved in a physical altercation while at work on July 31, 2008, and that she was terminated for being discourteous to the public. Thus, defendant's motion for summary adjudication of this cause of action addressed only the allegation that plaintiff's employment was terminated; it did not address, through either facts or argument, the allegations that defendant swore out a criminal complaint to have plaintiff prosecuted for a felony for acting in self-defense. Consequently, defendant did not demonstrate that there were no disputed facts relating to this cause of action or that, in light of the undisputed facts, it was entitled to judgment as a matter of law.
D. Immunity
Finally, defendant sought summary adjudication of the fifth, seventh, and eighth causes of action, arguing that it was immune from liability on those causes of action pursuant to Government Code sections 815.2 and 820.2. The latter section governs the liability of government employees:
"Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." (Gov. Code, § 820.2.)
The former section applies to governmental entities:
"(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.
"(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability." (Gov. Code, § 815.2.)
In Caldwell v. Montoya (1995) 10 Cal.4th 972, 981 (Caldwell), the court interpreted Government Code section 820.2 and concluded it immunized public employees from liability for certain discretionary acts and decisions. "Immunity is reserved for those 'basic policy decisions [which have] ... been [expressly] committed to coordinate branches of government,' and as to which judicial interference would thus be 'unseemly.' [Citation.]" (Caldwell, supra, 10 Cal.4th at p. 981.) Ministerial decisions that merely implement a basic policy already formulated are not immunized. (Ibid.) The court noted that the immunity statute contains an exception where "otherwise provided by statute," and explained that, "where the immunity provided by section 820.2 would otherwise apply, that immunity cannot be abrogated by a statute which simply imposes a general legal duty or liability on persons, including public employees." (Caldwell, supra, at p. 986.) It is abrogated only when there is "a clear indication of legislative intent that statutory immunity is withheld or withdrawn in the particular case." (Ibid.) The court held:
"[A]s a matter of law, the decision by members of an elected school board whether to renew the contract of the district's superintendent is a basic policy decision, and thus a discretionary act of the kind for which public employees are entitled to personal immunity under section 820.2 of the Tort Claims Act. By the terms of section 820.2, such personal immunity applies even against liabilities imposed by prohibitory state statutes of general application such as FEHA, unless there is a clear indication of legislative intent that immunity be withdrawn in the particular case. There is no indication of legislative intent that, notwithstanding the statutory immunity for discretionary acts, public employees may be personally sued for personnel decisions which violate FEHA. Hence, that immunity must prevail, if otherwise applicable, over FEHA claims against public employees in their individual capacities." (Caldwell, supra, 10 Cal.4th at p. 989, fn. omitted.)
The court added in a footnote: "Nothing we say here is intended to imply that because the individual board members are immune, plaintiff's FEHA claim against [the public entity] itself is also barred." (Caldwell, supra, 10 Cal.4th at p. 989, fn. 9.) The court noted section 815.2 applied principles of vicarious liability for the acts of employees, and the FEHA imposed direct liability on the entity itself. "Accordingly, any personal immunity of a public employee against a particular FEHA claim does not necessarily accrue to the benefit of the public entity itself as a covered 'employer.'" (Caldwell, at p. 989, fn. 9.) The Caldwell court did not decide the issue of entity immunity, because that issue was not before it. (Ibid.)
In DeJung v. Superior Court (2008) 169 Cal.App.4th 533, the court directly addressed the issue of entity immunity from liability under the FEHA. After reviewing the Caldwell decision, the DeJung court noted that the FEHA made employers directly liable for violations of the FEHA, and defined the term "employer" to include "'the state or any political or civil subdivision of the state.'" (DeJung, supra, at pp. 545-546, italics omitted.) The court interpreted the express inclusion of public entities in the definition of "employer" as "an express declaration of the Legislature's intent to subject public entities to liability for violations of FEHA, and ... a 'clear indication of legislative intent that immunity [under sections 820.2 and 815.2(b)] be withdrawn in the particular case.' [Citation.]" (DeJung, supra, at p. 546.) Consequently, the court concluded that a public entity has no discretionary act immunity against suits under the FEHA. (Id. at pp. 547, 548.)
Accordingly, we reject defendant's assertion of discretionary act immunity as a ground for granting summary adjudication of the fifth, seventh and eighth causes of action of the first amended complaint. Consequently, defendant did not demonstrate that it was entitled to summary adjudication of any of the causes of action it challenged.
DISPOSITION
The judgment is reversed with directions to vacate the order granting summary judgment and to enter a new and different order denying both summary judgment and summary adjudication. Plaintiff is awarded her costs on appeal.
HILL, P. J. WE CONCUR: WISEMAN, J. GOMES, J.