Schifando v. City of Los Angeles

79 P.3d 569, 6 Cal. Rptr. 3d 457, 31 Cal. 4th 1074

• Court: California Supreme Court
• Decided: December 23, 2003
• Docket: S106660
• Status: Published

Opinions

Opinion

CHIN, J.

We granted review to determine whether a city employee must exhaust both the administrative remedy that the California Fair Employment and Housing Act (Gov. Code,¹ § 12900 et seq.) (FEHA) provides and the internal remedy that a city charter requires before filing an FEHA disability discrimination claim in superior court. We conclude the employee need not exhaust both administrative remedies, and that receiving a Department of Fair Employment and Housing (the Department) “right to sue” letter is a sufficient prerequisite to filing an FEHA claim in superior court.

I. FACTUAL BACKGROUND

Plaintiff Steve Schifando filed a complaint against the City of Los Angeles (the City) in Los Angeles County Superior Court, alleging employment discrimination based on physical disability under the FEHA. The complaint alleges the following: Schifando worked for defendant City’s Parks and Recreation Department as a storekeeper. He suffered from severe hypertension that made him dizzy and lightheaded in stressful situations. He informed two supervisors of his condition.

Schifando met with the two supervisors in August 1998 to discuss his objections to recent changes in his job responsibilities. They argued with him and tried to get him to “blow his top” due to his medical condition. During the meeting, he began to sweat profusely, his face turned red, his chest felt constricted, and he had difficulty breathing. Finally, he exclaimed, “I can’t take it anymore; I quit!” The supervisors asked him to “put it in writing” and provided a piece of paper on which Schifando wrote “I quit.” The supervisors then left and returned with a blank “notice of vacancy and/or request for certification form.” They did not complete the form or explain it to Schifando, but asked him to sign it. He complied because he sought to avoid what he considered further dangerous confrontation. Schifando reconciled with one of the supervisors, but the other supervisor processed the signed “certification,” which Schifando learned was actually a resignation form. The complaint implies that the City terminated Schifando’s employment in August 1998 because he signed the resignation form. Although Schifando alleged that he had received a “right to sue” letter from the Department, and the record shows he did receive it, his complaint failed to observe that he received the notice in June 1999, within one year of his resignation. •

The City demurred to the complaint on the grounds that Schifando did not sufficiently allege that he was disabled or that he was able to perform the essential functions of his job, either with or without reasonable accommodations. The City also argued that the complaint failed to allege that Schifando had filed his administrative complaint with the Department by August 1999, as required by law. The trial court sustained the demurrer on the second ground and dismissed the action without leave to amend. Schifando filed a timely appeal. For the first time on appeal, the City alleged that Schifando had failed to exhaust his administrative remedies under the Charter of the City of Los Angeles (City Charter). The Court of Appeal affirmed the judgment and denied leave to amend on the new issue, holding that Schifando was required to exhaust both the FEHA and the City Charter remedies before filing his lawsuit in superior court. We granted review.

II. DISCUSSION

A. Procedural Background

When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint’s properly pleaded or implied factual allegations. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) Courts must also consider judicially noticed matters. (Ibid.) In addition, we give the complaint a reasonable interpretation, and read it in context. (Ibid.) If the trial court has sustained the demurer, we determine whether the complaint states facts sufficient to state a cause of action. If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. (Ibid.) If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. (Ibid.) The plaintiff has the burden of proving that an amendment would cure the defect. (Ibid.)

B. Administrative Remedies

1. FEHA Remedies

The California Fair Employment Practices Act was enacted in 1959 (former Lab. Code, § 1410 et seq., repealed by Stats. 1980, ch. 992, § 11, p. 3166) and recodified in 1980 in conjunction with the Rumford Fair Housing Act (former Health & Saf. Code, § 35700 et seq., repealed by Stats. 1980, ch. 992, § 8, p. 3166) to form the FEHA. (Stats. 1980, ch. 992, § 4, p. 3140.) The FEHA establishes as a civil right a person’s freedom from employment discrimination based on disability. (Gov. Code, § 12921.) Discrimination because of disability is against public policy (Gov. Code, § 12920) and is an unlawful employment practice. (Gov. Code, § 12940.) The legislative scheme created two administrative bodies: the Department (Gov. Code, § 12901), which investigates, conciliates, and seeks redress of claimed discrimination (Gov. Code, § 12930), and the Fair Employment and Housing Commission (the Commission) (Gov. Code, § 12903), which performs adjudicatory and rulemaking functions (Gov. Code, § 12935).

Employees who believe they have suffered discrimination under the FEHA may file complaints with the Department within a one-year period. (§ 12960.) The Department must then investigate their claims (§ 12963). It has 150 days to issue either an accusation for hearing before the Commission (§§ 12965, subd. (a), 12969) or a “right to sue letter.” Employees who receive a “right to sue” letter from the Department may then proceed on their statutory causes of action in superior court. They have one year from the date the letter is issued to do so. (§ 12965, subd. (b).) If the Department decides to issue an accusation with the Commission, it prosecutes the employee’s complaint. If the Commission finds in favor of the employer, the employee may subsequently file suit in superior court. In this event, the Commission’s findings are not binding on the court, which reviews the evidence de novo. (See State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 433 [217 Cal.Rptr. 16, 703 P.2d 354] (State Personnel Bd.); see also Kerrigan v. Fair Employment Practice Com. (1979) 91 Cal.App.3d 43, 51 [154 Cal.Rptr. 29].)

The Legislature intended the FEHA’s administrative system “to occupy the field of regulation of discrimination in employment and housing encompassed by the provisions of [the act], exclusive of all other laws banning discrimination in employment and housing by any city, city and county, county, or other political subdivision of the state . . . .” (§ 12993, subd. (c).) In other words, although the FEHA does not limit the application of other state statutes (e.g., Civ. Code, § 51.7), or constitutional provisions involving discrimination, it expressly preempts local governmental laws, regulations, and procedures that would affect the rights included in its provisions. It provides a one-year grace period for pending local enforcement proceedings. (Gov. Code, § 12960; see Rojo v. Kliger (1990) 52 Cal.3d 65, 77-79 [276 Cal.Rptr. 130, 801 P.2d 373] (Rojo).)

2. City Charter Remedies

The City Charter directs employees who believe they have been wrongfully suspended, laid off, or discharged to follow certain procedures. Former section 112 1/2 of article IX,² the provision at issue here, stated: “Whenever it is claimed by any person that he has been unlawfully suspended, laid off or discharged, and that such lay-off, suspension, or discharge is ineffective for any reason, any claim for compensation must be made and a demand for reinstatement must be presented in writing within ninety days following the date on which it is claimed that such person was first illegally, wrongfully or invalidly laid off, suspended or discharged. Such demand for reinstatement must be filed with the Board of Civil Service Commissioners and such claim for compensation for such allegedly wrongful, illegal or erroneous discharge must be filed with the City Clerk. Failure to file such demand for reinstatement within the time herein specified shall be a bar to any action to compel such reinstatement and proof of filing such a demand for reinstatement must be completed and proved a condition precedent to the maintenance of any action for reinstatement. Proof of filing the claim for compensation within the time and in the manner herein specified shall be a condition precedent to any recovery of wages or salary claimed to be due on account of said lay-off, suspension or discharge.”

The demand requirement has been described as “somewhat analogous to the requirement of a petition for a rehearing addressed to the board.” (Steen v. Board of Civil Service Commrs. (1945) 26 Cal.2d 716, 722 [160 P.2d 816].) Filing the demand does not compel the Board of Civil Service Commissioners to take any action. (Id. at p. 721.) Rather, it affords the board an additional opportunity to consider the matter before the complainant resorts to litigation. (Ibid.) It also serves to “fix[] a time limit and formalities necessary as a basis for court action.” (Id. at p. 722.)

Under administrative mandamus procedure, the superior court may review a city board of civil service commissioners’ decision upholding a layoff, discharge, or suspension. (Code Civ. Proc., § 1094.5.) However, assuming no vested right is involved, the court does not review the decision de novo, but under a substantial evidence standard. (See State Personnel Bd., supra, 39 Cal.3d at p. 433.) This standard of review reflects the respect this court has traditionally afforded public employers’ internal reviewing board decisions. (See Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 [131 Cal.Rptr. 90, 551 P.2d 410] (Westlake).) However, we have never confronted the issue here presented, and find troubling the possibility that exhausting City Charter procedures might deprive a victim of discrimination of a civil right created by the Legislature.

C. State Personnel Bd.

We discuss State Personnel Bd., supra, 39 Cal.3d 422, because the shortcomings of the Civil Service Act (§ 18500 et seq.) discussed in that case (as compared to the FEHA), are equally present with respect to the shortcomings of the City Charter at issue in this case. The main issue in State Personnel Bd. was whether the Department may exercise jurisdiction under the FEHA over state employees who are also protected under the antidiscrimination provisions of the Civil Service Act. (§ 19702, subd. (a).) We concluded that “the Legislature made a choice to afford both the remedies of the [state] Civil Service Act and the FEHA to members of the state civil service . . . .” (State Personnel Bd., supra, 39 Cal.3d at p. 435.) In reaching this conclusion, we recognized some fundamental differences between the rights given to a discrimination complainant under the FEHA and under the Civil Service Act. It is important to note that the plurality decision in State Personnel Bd. did not reach the issue whether state employees would have to exhaust their remedies under the Civil Service Act in order to assert an FEHA claim. The court merely held that the Department may exercise jurisdiction over state employees. (Id. at pp. 432-434.)

State Personnel Bd. observed, “The [Department] provides enforcement services to discrimination complainants that do not have a counterpart in the civil service system. Under the FEHA, the Department bears the expense of investigating, conciliating and, where necessary, prosecuting the action on behalf of the claimant. (§§ 12961-12963, 12963.1-12963.7.) This includes the services of an attorney from the Department to try the case at no expense to the claimant. (§ 12969.) If the Commission decides in the claimant’s favor, the Department must thereafter conduct a compliance review to see that the employer is fully obeying the Commission’s order. (§ 12973.)” (State Personnel Bd., supra, 39 Cal.3d at p. 432.)

“These enforcement services are not available under the Civil Service Act. Appeals filed with the [State Personnel] Board are initially investigated and conciliated not by a neutral, outside agency like the [Department], but by the same state agency (the employer) that is charged with discrimination. (See Cal. Admin. Code, tit. 2, §§ 547.1-547.2.) . . . Moreover, while complainants may hire an attorney to represent them at a Board hearing (Cal. Admin. Code, tit. 2, § 73), they must bear the cost themselves.” (State Personnel Bd., supra, 39 Cal.3d at p. 432.)

Similarly, under both former section 112 1/2 of title IX and current article X, section 1017 of the City Charter, the City is both the party accused of wrongdoing and the party charged with investigating the wrongdoing. No provision is made in the City Charter for the appointment of an attorney at no cost to the employee.

“The procedural rights afforded under the FEHA are also quite different from [State Personnel] Board procedures. Beginning with the filing of a complaint, the Board’s internal rules require that appeal from an adverse employment decision be filed within 30 days (Board rule 64), whereas the FEHA provides a period of one year in which to file. (§ 12960.) Next, complainants under the FEHA have a private right of action in superior court—a right not afforded by the Civil Service Act. (§ 12965, subd. (b).) If their case is tried before the [Commission] instead of in superior court, and an adverse decision is reached, the superior court will independently review the evidence rather than deferring to the [Commission]’s adverse decision. [Citations.] By contrast, in reviewing Board decisions the superior court is restricted to a ‘substantial evidence’ standard of review under which ‘[f]actual determinations are not subject to reexamination in a trial de novo, but are to be upheld by a reviewing court if they are supported by substantial evidence.’ [Citation.]” (State Personnel Bd., supra, 39 Cal.3d. at pp. 432-433, fn. omitted.)

The City Charter at issue here was drafted by a board of freeholders in 1924. (Ann. City Charter (1973 ed.) p. iii.) The voters ratified the charter in January 1925, and it took effect on July 1, 1925. (Ibid.) Section 112 1/2 was added to the charter on April 4, 1937, and became effective April 29, 1937. (Ann. City Charter, supra, p. iii.) The charter focused on the remedies of compensation and reinstatement only, and required those claims to be “presented in writing within ninety days following the date on which it is claimed that such person was first illegally, wrongfully or invalidly laid off, suspended or discharged” (City Charter, former art. IX, § 112 1/2), a period substantially shorter than the one year afforded to FEHA complainants. Practically speaking, this means that the City’s Board of Civil Service Commissioners would hear the matter before the Department would. The court reviewing a petition for writ of administrative mandamus would give deference to the findings of the City’s board. If the reviewing court upheld the City board’s decision, its findings would then be res judicata on any claims filed after the Department issued a right to sue letter. If so, aggrieved employees would not have had the chance to develop their cases (through adequate discovery, presentation of evidence, and cross-examination, rights not guaranteed at the City’s hearing) to the extent the Legislature intended.

In State Personnel Bd., we emphasized that “[t]he most fundamental difference between the two forums ... is the nature of the forums themselves. The [Commission] is a neutral body, disinterested in the controversy between employer and employee. By contrast, where [State Personnel] Board standards are challenged as discriminatory, the Board occupies the roles of both defendant and judge. Internal review of challenged standards is a healthy endeavor for any agency, and the Board should not be deprived of this opportunity. However, the Legislature has provided for more than this for state, [city and private] employees [alike]. It has provided for review of allegedly discriminatory standards by an independent adjudicatory body—the [Commission].” (State Personnel Bd., supra, 39 Cal.3d at p. 434, fn. omitted.)

Requiring City’s employees to pursue remedies under both the City Charter and through the Department would frustrate the Legislature’s intent. State Personnel Bd. emphasized that “The Legislature’s intent was to give public employees the same tools in the battle against employment discrimination that are available to private employees. The FEHA was meant to supplement, not supplant or be supplanted by existing antidiscrimination remedies, in order to give employees the maximum opportunity to vindicate their civil rights against discrimination. . . ,”³ (State Personnel Bd., supra, 39 Cal.3d at p. 431, italics added.) The court reasoned that “given the differences between the two statutory schemes, the Legislature’s desire to include state employees within the purview of the FEHA, notwithstanding their coverage by the antidiscrimination provisions of the Civil Service Act, is understandable. The procedures, protections and enforcement services available to discrimination claimants under the FEHA go beyond those available under the Civil Service Act.” (State Personnel Bd., supra, 39 Cal.3d at p. 431, fn. omitted.) The court concluded that state employees should be able to choose between pursuing their claims under the FEHA or under other statutes that cover similar ground, but do not afford similar procedures, remedies and protections. (Ibid.)

D. Watson and Ruiz

Two Court of Appeal decisions, both relying on State Personnel Bd., concluded that a civil service employee may choose between the two administrative forums—the State Personnel Board or the Department. In Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1284 [261 Cal.Rptr. 204] (Watson), the Court of Appeal stated, “We fail to understand why the State continues to urge on appeal as it did in the trial court that Watson may not prevail because she has not exhausted her civil service administrative remedies. She need not have done so as the State well knows because Watson had a choice between her civil service remedies and those provided by the [FEHA], (Gov. Code, § 12940 et seq.; [State Personnel Bd., supra, 39 Cal.3d at pp. 429, 431].) She chose to file her first charge with the DFEP [Department of Fair Employment Practices] and proceed accordingly. Watson complied with the procedures required under the act, received her ‘right to sue’ letter and timely filed her suit.” (Watson, supra, at p. 1284.)

In Ruiz v. Department of Corrections (2000) 77 Cal.App.4th 891, 900 [92 Cal.Rptr.2d 139] (Ruiz), the Court of Appeal held that state employees may pursue their claims of employment discrimination with either the State Personnel Board or the Department, or both. Unlike Watson, supra, 212 Cal.App.3d at page 1284, Ruiz viewed State Personnel Bd., supra, 39 Cal.3d , as authority only for the Department’s and the State Personnel Board’s concurrent jurisdiction over matters involving state employee discrimination claims. (Ruiz, supra, at p. 897.) Ruiz, however, interpreted State Personnel Bd. and other cases as indicating a strong public policy supporting an employee’s ability to challenge discriminatory employment practices in the forum of choice. (Ruiz, supra, at p. 898.) The court concluded that State Personnel Bd. in particular, supports “an expansive view of the avenues aggrieved state employees may pursue when filing their complaints.” (Ruiz, supra, at p. 897.) The court correctly noted that we “took care to explain the differences between the two forums, emphasizing that the antidiscrimination provisions of the FEHA were more extensive than those in the Civil Service Act.” (Ibid.)

Ruiz further reasoned that our “attention [in State Personnel Bd.] on the different purposes of the two agencies suggests it would be proper for a potential claimant to consider which forum would be more appropriate for his or her cause of action.” (Ruiz, supra, 77 Cal.App.4th at p. 898.) We agree. In State Personnel Bd. we explained, “The purpose of the Civil Service Act is to ensure that appointments to state office are made not on the basis of patronage, but on the basis of merit, in order to preserve the economy and efficiency of state service. (See § 18500.) The purpose of the FEHA is to provide effective remedies for the vindication of constitutionally recognized civil rights, and to eliminate discriminatory practices .... The Commission and Department have 25 years of administrative expertise solely in the prevention and remedying of civil rights discrimination, and thus have more specialized expertise in this area than does the [State Personnel] Board.” (State Personnel Bd., supra, 39 Cal.3d at p. 432.) Thus, certain cases are more appropriate for the Department forum than for the State Personnel Board. For similar reasons, we find FEHA discrimination claims may be more appropriately heard by the Department than the City’s Board of Civil Service Commissioners. Clearly, some plaintiffs would prefer the summary procedure of the Civil Service Act or comparable administrative remedies, while others with more serious discrimination claims would prefer to bypass the administrative procedures to seek a vindication of their civil rights, even if the ensuing litigation is expensive and protracted. The opportunity for all public and private employees to vindicate civil rights is the primary intent of the FEHA, and as Ruiz observed, this is why plaintiffs have a choice between their civil service remedies and those provided by the FEHA. (Ruiz, supra, 77 Cal.App.4th at p. 891.)

Ruiz also explored the practical considerations a state employee might face if we required employees to always exhaust their FEHA and state Civil Service Act remedies. As Ruiz explained, imposing this requirement would present a “procedural minefield. Not only must the state employee, as well as the state employer, struggle to comply with the substantive and procedural requirements of each agency, but there arises a potential problem with the statute of limitations. Claimants who unsuccessfully appeal their termination with the [State Personnel] Board must file a writ in the trial court if they wish to challenge the findings of the Board. Otherwise, they are bound by the factual findings of the Board in future litigation. [Citations.] In the meantime, however, these same claimants must consider the strict statutory deadlines of the [Department] if they wish to file a subsequent or simultaneous complaint with that agency as well. According to the Department, claimants who receive their ‘right to sue’ letters from the [Department] cannot initiate their lawsuits because they must [first exhaust the administrative remedies the State Personnel Board requires], a wait that could affect filing deadlines with the trial court. Moreover, to avoid [the effect of collateral estoppel on issues the Board decides], these same claimants must also wait until their writ to the trial court has been decided before initiating legal action. [Citation.] Though the doctrine of equitable tolling could possibly remedy the problem, the fact remains that the failure of state employees to meet statutory deadlines would be a potential argument by employers in future litigation, adding another obstacle for employees.” (Ruiz, supra, 77 Cal.App.4th at p. 899.)

Ruiz emphasized that if the court were to require state employees to exhaust their administrative remedies at the State Personnel Board, regardless of their desire to pursue the same claims with other agencies, it would be imposing on them a burden that private employees do not share, raising potential equal protection issues. (Ruiz, supra, 77 Cal.App.4th at p. 899.) The court also observed that affording state employees a choice between administrative remedies was in no way inconsistent with the doctrine of exhaustion of remedies, which, Ruiz concluded, requires only that a party comport with the chosen administrative forum’s procedural requirements. (Ibid.)

Even if we were to assume that former article IX, section 112 1/2, now article X, section 1017 of the City Charter is on equal footing with the Civil Service Act, we see no reason to distinguish the present action from Ruiz. As the Court of Appeal below acknowledged, the pursuit of separate administrative remedies may result in inconsistent administrative findings or adjudications. The court refused, however, to opine as to how to resolve the conflict should it occur, concluding instead that the possibility of conflict does not outweigh the benefits of requiring exhaustion of both administrative remedies.

We find the Court of Appeal’s reasoning unpersuasive, and conclude the approach we adopted in State Personnel Bd., and the Court of Appeal adopted in Ruiz and other cases is the better one. A city employee would indeed tread onto a “procedural minefield” if a claim was filed with the Department at the same time remedies were pursued under the City Charter. The benefits of judicial economy, agency expertise, and potential for swift resolution of grievances are better served by a rule that allows aggrieved public employees to seek redress in the forum that is most appropriate to their situation.

We note an additional reason not to impose the internal exhaustion requirement in this case. As an employee of the City, Schifando is not governed by the Civil Service Act. Therefore, his principal statutory remedy (in addition to the general Unruh Civil Rights Act provisions (Civ. Code, § 51.7 et seq.) under California law to redress the asserted discrimination he suffered is to file an FEHA claim. As we have recognized, the FEHA was enacted to expand, not to limit employees’ rights to remedy discrimination. (Rojo, supra, 52 Cal.3d at p. 82; State Personnel Bd., supra, 39 Cal.3d at p. 431.) It would be inconsistent with this legislative purpose to hold that aggrieved employees must exhaust their remedies under a city charter contemporaneous with or before filing a claim with the Department.⁴

On a final note, we are not concerned that all public employees, and in particular those employees with a routine administrative claim for compensation or reinstatement will choose to bypass the summary and expeditious procedures and remedies the City Charter provides in order to proceed directly to a jury trial to seek an award of compensatory or punitive damages.

E. Johnson

Our decision in Johnson v. City of Loma Linda (2000) 24 Cal.4th 61 [99 Cal.Rptr.2d 316, 5 P.3d 874] (Johnson), does not militate against this conclusion. Johnson held that when employees have availed themselves of the administrative remedies a local statute affords, and have received an adverse quasi-judicial finding, that finding is binding on subsequent discrimination claims under the FEHA unless set aside through a timely mandamus petition. (Id. at p. 76.) The Johnson plaintiff failed to seek a timely writ of administrative mandate regarding the decision of his city employer’s administrative decision that his termination was for economic reasons. (Id. at p. 66.) Johnson did not require the employee to exhaust his remedies before the city personnel board in order to assert an FEHA claim—in fact, the court made it clear that the issue was not before it. (Id. at p. 73.) Instead, the court observed that the plaintiff’s reliance on Watson, supra, 212 Cal.App.3d 1271, was misplaced; “It is clear from the quoted language that the Court of Appeal in Watson faced the issue whether a plaintiff must exhaust non-FEHA administrative remedies as a prerequisite to initiating a lawsuit, including an FEHA claim. That issue is not before us. As we mentioned earlier, here plaintiff did exhaust the non-FEHA civil service administrative remedies provided by the City.” (Johnson, supra, at p. 73.) Thus, Johnson held only that because the employee had exhausted the remedies the city offered, and had not exhausted his judicial remedies, the city agency’s findings were binding on his subsequent FEHA claims. (Ibid.) We reasoned that refusing to give binding effect to those quasi-judicial findings would “undermine the efficacy of such proceedings, rendering them in many cases little more than rehearsals for litigation.” (Id. at p. 72.)

Nothing in this conclusion disturbs our holding in Johnson, supra, 24 Cal.4th at page 72. We serve judicial economy by giving collateral estoppel effect to appropriate administrative findings. Johnson’s requirement that employees exhaust judicial remedies ensures proper respect for administrative proceedings. It requires employees challenging administrative findings to do so in the appropriate forum, by filing a writ of administrative mandamus petition in superior court. Johnson also ensures that employees who choose to utilize internal procedures are not given a second “bite of the procedural apple.” However, we do not serve judicial economy if we require employees who have allegedly suffered discrimination at the hands of public employers to pursue redress in two separate forums. As noted above, to do so would frustrate legislative intent and create a procedural labyrinth that aggrieved employees, often not represented by counsel at the early stages of litigation, would likely be incapable of navigating.

F. Cases Requiring Exhaustion of Internal Remedies

We have in the past and continue to recognize the value of internal remedies. In Westlake, supra, 17 Cal.3d 465, we held that a doctor must exhaust the internal remedies a private hospital offered before filing suit challenging the propriety of its decision to deny or withdraw her hospital privileges. Westlake noted that where the “policy considerations which support the imposition of a general exhaustion requirement remain compelling,” parties may be required to exhaust their administrative remedies even if they seek remedies not available through administrative action. (Id. at p. 476.)

Rojo explained that “[t]he ‘context’ to which Westlake properly applies is where the party or entity whose ‘quasi-judicial’ determination is challenged—be it hospital, voluntary private or professional association, or public entity—has provided an internal remedy. [Citations.] [][] The reason for the exhaustion requirement in this context is plain. . . . ‘[W]e believe as a matter of policy that the association itself should in the first instance pass on the merits of an individual’s application rather than shift this burden to the courts.’ . . . [][] Though Westlake, supra, 17 Cal.3d 465, concerned the exhaustion of private internal remedies, many courts have nevertheless relied on its reasoning to require exhaustion of ‘external’ administrative remedies in a variety of public contexts. In so doing, the courts . . . have expressly or implicitly determined that the administrative agency possesses a specialized and specific body of expertise in a field that particularly equips it to handle the subject matter of the dispute.” (Rojo, supra, 52 Cal.3d at pp. 86-87.)

Rojo observed that the Legislature did not intend to require employees filing non-FEHA discrimination claims in court to exhaust the Department’s remedies. (Rojo, supra, 52 Cal.3d at p. 86.) We explained, “a judge or jury is fully capable of determining whether discrimination has occurred.” (Id. at p. 88.) However, the Legislature did intend that the plaintiffs who desire to pursue an FEHA remedy to have the benefit of the “efficiency and expertise the Department and Commission bring to bear in investigating and determining [not reviewing determinations made by internal panels of the employer regarding] statutory discrimination cases .... ” (Ibid.)

In Moreno v. Cairns (1942) 20 Cal.2d 531 [127 P.2d 914] (Moreno), we specifically recognized the exhaustion requirement with respect to the City Charter provision at issue in this case. We held that a “coerced resignation” fell under the “unlawful discharge” language of former section 112 1/2 of the City Charter, and that the plaintiff’s failure timely to utilize the internal appeal procedure barred his writ of mandate to the superior court, seeking reinstatement with the City fire department.

The gist of Westlake, Rojo, and Moreno is a respect for internal grievance procedures and the exhaustion requirement where the Legislature has not specifically mandated its own administrative review process, as in the FEHA.⁵

This court, however, has never held that exhaustion of an internal employer procedure was required where an employee made a claim under FEHA or another statutory scheme containing its own exhaustion prerequisite. The distinction is compelling.

III. CONCLUSION

We hold that municipal employees who claim they have suffered employment-related discrimination need not exhaust City Charter internal remedies prior to filing a complaint with the Department. We recognize the existence of potential procedural issues that might arise in the situation where an employee chooses to pursue both avenues of redress, but those issues are not before us.⁶

Therefore, based on the principles discussed above, the Court of Appeal erred in affirming the trial court’s judgment. We reverse the judgment of the Court of Appeal and remand the matter for further proceedings consistent with our conclusion.⁷

George, C. J., Kennard, J., Werdegar, J., and Moreno, J., concurred.

1 All further statutory references are to the Government Code unless otherwise indicated.

2 On July 1, 2000, the City Charter was amended and article IX, section 112 1/2 was modified and renumbered, but the new provision did not effect material changes. (See City Charter, art. X, § 1017 [Employment Provisions—Demand for Reinstatement; Claim for Compensation].)

3 Any argument the dissent makes that our holding effectively supplants the City Charter’s remedies with remedies available under the FEHA is without merit. Our holding has the effect of supplementing a city employee’s avenue for redress with the FEHA alternative. Government employees remain free to pursue a city’s internal remedy. Having chosen to file a claim with the Department, however, plaintiff is not required also to pursue the City remedy for discriminatory employment practices. Requiring him to do so would have the effect of supplanting his FEHA option, given the City’s less rigorous procedural safeguards and the substantial evidence standard of review its findings would be accorded in a later proceeding.

4 Shortly before oral argument, amicus curiae County of Los Angeles, in support of respondent, filed a request for judicial notice of two specific items: Assembly Bill No. 2892 (2001-2002 Reg. Sess.) section 1, and the Governor’s veto of the proposed legislation on September 28, 2002. We do not find the materials particularly supportive of respondent’s cause or relevant to the action, and therefore deny the request. (Evid. Code, §§ 452, subd. (c), 459.)

After argument, County of Los Angeles also requested the court judicially notice the Ninth Circuit’s opinion in E.E.O.C. v. Luce, Forward, Hamilton & Scripps (9th Cir. 2003) 345 F.3d 742. We are well aware of Luce, Forward’s holding that employers do not violate title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-3) if they, as a condition of employment, require employees to submit all employment claims to arbitration. Although, as a reviewing court, we will judicially notice the decisional law of the United States, and do so here, we find Luce, Forward’s analysis and holding have no application to the issue in the present action. (Evid. Code, § 459, subd. (a).)

The same amicus curiae asserts that principles discussed in County of Riverside v. Superior Court (2003) 30 Cal.4th 278 [132 Cal.Rptr.2d 713, 66 P.3d 718] render plaintiff’s construction of the FEHA invalid on the ground that state statutes cannot constitutionally impinge on final decisions made by charter cities that have been vested with constitutional authority. After considering amicus curiae’s contention, we reject it as inapposite. No party has alleged here that the Department is attempting to “displace” the decision of the charter city at issue or, as amicus curiae also claims, make a “completed substantive decision” about the city’s power to remove its own employees.

5 As noted, the FEHA provides its own administrative remedies, a fact the dissent overlooks. The dissent’s questionable analysis in turn, leads it to criticize sound precedent from our own appellate courts (including Ruiz, supra, 77 Cal.App.4th at p. 900), and misapply our decisions in Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026 [6 Cal.Rptr.3d 441, 79 P.3d 556], Johnson, supra, 24 Cal.4th 61, Rojo, supra, 52 Cal.3d 65, State Personnel Bd., supra, 39 Cal.3d 422, Westlake, supra, 17 Cal.3d 465, and Moreno, supra, 20 Cal.2d 531, an untenable position we find unsupported in law or fact. We specifically do not decide whether an employee would be required to satisfy internal administrative remedies when the statutes implicated by particular facts do not provide their own internal administrative procedures.

6 One note of caution is required. In the present action, Schifando filed the FEHA claim only. We therefore need not decide whether his failure to exhaust the City’s procedures would have barred any other claim based on the same acts by the City.

7 Because we reverse the Court of Appeal’s judgment, it is unnecessary for us to address Schifando’s claim that the City Charter violates the equal protection clauses of the state or federal Constitution, or to resolve the remaining issue whether the Court of Appeal abused its discretion in sustaining the demurrer on a new legal theory without leave to amend.