Lee v. City of Los Angeles

Filed 2/18/10 Lee v. City of Los Angeles CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael L. Stern, Judge. Reversed and remanded.

Haight, Brown & Bonesteel and Rita Gunasekaran; Ivie, McNeill & Wyatt, W. Keith Wyatt and Rupert A. Byrdsong for Defendants and Appellants.

Litt, Estuar, Harrison & Kitson, Genie Harrison and Robert M. Kitson; Pine & Pine, Norman Pine, Beverly Tillett Pine, and Janet Gusdorff for Plaintiff and Respondent.

The City of Los Angeles and Chris Hare (collectively the city) appeal from a judgment in favor of respondent Brenda Lee (Lee) entered following a jury trial on Lees claims against the city for discrimination, harassment, retaliation, and failure to investigate and take remedial action.

Lee, who is an African-American lesbian, was an employee of the Los Angeles Fire Department (LAFD). Lees claims against the city were based on Lees allegations that the city and several of its employees discriminated against Lee on the basis of her race, gender, and sexual orientation. In her complaint, Lee listed eight adverse actions to which she was subjected as a result of the discrimination against her, including [r]efusing to permit [Lee] to return to work under the pretext that she was psychologically unfit to be a firefighter.

The city contends that the judgment must be reversed because Lee failed to exhaust her administrative remedies with respect to her claim that she was not permitted to return to work. The city further contends that substantial evidence did not support the finding that Lees termination was discriminatory, and that the trial courts evidentiary rulings excluding certain evidence were erroneous and prejudicial.

We find that Lee failed to exhaust her administrative remedies regarding her claim that she was not permitted to return to work. Lees failure to exhaust her administrative remedies regarding her termination is a jurisdictional bar to a civil suit on that claim.[1] Therefore the matter is reversed and remanded for further proceedings limited to those claims over which the trial court has jurisdiction.

FACTUAL BACKGROUND

Lee became a firefighter with the LAFD in 1993. In June 2002, when she had been a firefighter for nine years, Lee sought and obtained a transfer to Fire Station 96 (Station 96). She was assigned to Platoon C, serving under Captains Richard Elder (Captain II) (Elder) and Christopher Hare (Captain I) (Hare).

1. Harassment of Lee at Fire Station 96

Before Lee began working at Station 96, Elder telephoned her and requested that she suck back her brownie, or withdraw her request to transfer. He informed Lee that he did not want her to come to the station. On the first day that Lee reported to Station 96, Elder informed her that another firefighter felt that he couldnt bring his daughters to the station because of her and that Elder didnt approve of [her] lifestyle either. Elder repeated similar disparaging comments regarding Lees race and sexual orientation during Lees tenure at Station 96. He also inappropriately commented on Lees life partner, Jayna, stating: Its a waste shes with you. Shes pretty and shes got a nice rack.

Hare also repeatedly made derogatory comments in Lees presence. For example, he would watch basketball games and refer to African-Americans as freakin burr heads, sticker heads, and fuckin niggers. Hare referred to homosexuals as faggots and referred to women as whores and sluts. Hare once said to Lee: Oh, look at those tits. Hey, Brenda, do you think you could get her in bed.

When returning from her days off, Lee would confront a horrible smell coming from the womens restroom. Despite the availability of four toilets for males at the station, men would defecate in the womens toilet and not flush. Lee would find feces left in the bowl. Lee asked Elder if he would instruct the men that if they used the womens restroom, they should at least flush. Elder laughed at Lees request in front of the whole crew. Hare commented, Did it say anything to you, Brenda? Did it look like you? Everyone started laughing. The offensive conduct continued despite Lees repeated requests that it stop.

2. Fight with Firefighter Donald Wible (Wible)

In October 2003, while fighting a fire in Simi Valley, Lee got into a physical fight with Wible. Lee testified that their engine was assigned to transport water to the scene of the fire, but Wible wanted to remain at the scene of the fire and talk to a female firefighter. An argument over the issue led to Wible throwing Lee on her back and attempting to choke her windpipe, with Lee, in turn, hitting his hand off.

Captain Bressler (Bressler) of the B Platoon intervened and the fight ended. Wible informed Bressler that he wanted to file a complaint, but he agreed to work with Lee once Bressler informed him that, if the incident were reported, their team would be pulled off the fire. There were no further altercations between Lee and Wible. Bressler did not report the incident because he was trained to handle things at the lowest level.[2]

3. Lee reports the discriminatory conduct against her to Bressler

It was very hard for Lee to endure the conduct of Elder and Hare. However, she had to work with them and she feared retaliation if she complained. She had seen others suffer retaliation. Therefore, she delayed reporting the discrimination and harassment.

Because her immediate supervisors in the C Platoon were her tormentors, Lee confided in Bressler. Initially, Lee told him not to report her complaints. Eventually, Bressler felt compelled to report the harassment to his superiors. In February 2004, he told Battalion Chief Robert Cramer (Cramer) that the hostile work environment at C Platoon should be investigated. Cramer responded, Ill get back to you, but he never did.

Several days after talking with Cramer, Bressler verbally reported Lees harassment to Battalion Chief Douglas Barry (Barry). Barry also indicated that he would get back to Bressler, but never did. In late February, Bressler tried to discuss the issue of Lees harassment with Division Chief Roderick Garcia (Garcia), but Garcia didnt want to hear anything about these incidents. He would not allow Bressler to discuss them. At a training session, Garcia called Bressler aside and asked him, Whats this I hear you are going to file a complaint about harassment and hostile work environment? Bressler explained that he was not filing it on his behalf, but on behalf of Lee. Garcia told Bressler, If you turn in a report like that, Im going to give you one year of misery.

4. Elders efforts to drive Lee out of Station 96

Rather than acting to prevent discriminatory acts directed at Lee, Elder proceeded to try to make a record upon which he could drive Lee out of Station 96. Firefighter Gary Mellinger (Mellinger) testified that it was common knowledge that the captains were out to get [Lee]. In late January 2004, Elder yelled at Bressler for failing to report the altercation between Wible and Lee about three months earlier. Elder presented Bressler with a list of questions about the stale incident. During this exchange, Elder angrily told Bressler that Bressler had a duty to help [Elder] get firefighter Lee. On a different occasion, Bressler overheard Elder tell Chief Robert Rose (Rose) that he had four things on firefighter Lee and that he just needed one more to get rid of her. Elder told Rose: [I]f only Bressler had told me about the Brush Fire Incident, I would have FF Lee in my cross hairs.

5. Lees decision to report the discrimination

When Bressler told Lee about Elders comments, Lee became alarmed. She told Bressler, Enoughs enough. I want to report it all. This is crazy. On March 5, 2004, Lee walked into the womens locker room and found Firefighter Douglas McCleerey (McCleerey) in the room with the top and bottom portions of her locker open. After telling him to leave, Lee threw away all her toiletries because, when she was a rookie, somebody had urinated in her mouthwash. Lee told Captain McMaster (McMaster), her superior for the day, what had happened. Rather than handling the matter discreetly, McMaster immediately called a lineup and publicly told McCleerey that Lee did not like him in her locker. McCleerey angrily confronted Lee and shunned her thereafter.

The McCleerey incident convinced Lee to ask Bressler about reporting the harassment and discrimination she had been suffering. Bressler forwarded a letter from Lee to the Fire Chief through channels. The letter stated:

I wish to file a formal complaint and request a formal department investigation at Fire Station 96, dealing with ongoing discrimination and constant ongoing harassment by members of Fire Station 96. . . . I do not want to submit this to my Captains for fear of reprisals.

Bressler gave the letter to Battalion Chief Gary Bowie on March 18, 2004. After reading it, Bowie said, We dont want a letter from her, we want a letter from you. So Bressler immediately sat down, typed a similar letter from himself and gave it to Bowie.

After turning in the letter, Bressler repeatedly followed up with Bea Lopez (Lopez), the citys equal employment opportunity officer. When he personally met with Lopez, Bressler brought Mellinger along with him to tell Lopez everything that was happening. Lopez told Bressler that she needed three more people to confirm that these acts of harassment and discrimination were occurring.

6. The investigation and retaliation against Lee

Following Bresslers formal report, the C Platoon was asked by Andrew Fox, the fire chiefs second in command, to investigate itself. The investigation consisted of Elder and Hare submitting letters to their supervisor (Rose), who in turn, ultimately submitted a report to Division Commanders Garcia (B platoon) and Curtis James (James) (C platoon). Days later, Rose wrote a memo asking Lee if she had heard anything from Hare that was derogatory or discriminatory. Acting in good faith, Lee typed a detailed three-page letter listing specific examples. She attempted to put it into an interdepartmental mailer. Elder stopped her and told her the letter would have to go out through him. Because Lee feared retaliation, she told Elder it was just notes, tore it up, and burned the pieces to ensure that Elder never saw it. Lee then wrote a short meaningless letter to Rose, which Elder read. After reading it, he told Lee, Im glad you came over to the good side.

Meanwhile Lees run-ins with Elder continued. In early May 2004, Elder asked Lee, who until then had sole use of the womens locker room, to clear at least one lockable locker for a new female firefighter. When the new firefighter arrived, Lee had not complied. Thus, Elder took her stuff out of a locker and put it in a cardboard box. Lee was shocked at this action, and went outside to call Lopez, the equal employment opportunity officer. While she was doing so, Elder approached her vehicle and banged on the hood. When Lee came out Elder screamed We need to talk. Im going to tell you how things are going to go around here. Lee backed away from Elder and hid in the womens locker room until others arrived. Lee filed a written report (F-225) of the incident for Rose. No one talked to her about the memorandum.

On June 10, 2004, Lee received a reprimand, written by Elder, based on Lees failure to prepare and present a drill demonstrating the proper shifting of gears and the proper operation of apparatus. Lee filed a non-concurrence with the reprimand, stating that she believed it was retaliatory. Rose never contacted her about the letter.

Lee testified that her life had become a living hell at Station 96.

7. Lees administrative complaint

On June 16, 2004, Lee filed a charge with the California Department of Fair Employment and Housing (DFEH) through her attorney, Thomas Hoegh. In her DFEH charge, Lee described the particulars of the discrimination she was suffering. As to the date most recent or continuing discrimination took place, Lee listed 8/03 to present. She specified that she had been harassed, denied accommodation, and denied family or medical leave by Elder and Hare. She specified the basis of this illegal conduct as sex, religion, race/color, sexual orientation, association, and retaliation for complaining of discrimination. Lee gave the reason for her complaint as racial comments, derogatory comments, threats (like Im going to get her).

On July 20, 2004, the DFEH issued a Notice of Case Closure to Lee constituting Lees right-to-sue notice.

8. Further retaliation against Lee at Station 96

About a month after filing her DFEH complaint, Lee received another reprimand, for screaming in a hostile manner regarding the incident that occurred in May when Elder removed items from Lees locker. On August 1, 2004, Lee wrote a non-concurrence to this reprimand which included a list of hostile acts taken against her by Elder. Lee did not feel comfortable sending this non-concurrence through Elder. She confided in Rose and stated that she was willing to hand-deliver it to Rose. Rose insisted that it go through Elder. When Lee handed the letter enclosed in a mailer to Elder, he told her that he was going to read it. Rose never contacted Lee about the letter.

Shortly thereafter, Lee was asked by Garcia and James to prepare a written explanation of her verbal allegation that Elder did not approve of her lifestyle. Lee complied, and informed James in writing that the stress created by the hostile work environment was having a negative impact on her life and causing sleeplessness, nightmares, persistent anxiety, and depression.

On August 14, 2004, Lee called in sick and spoke to Captain Roger Ruddick (Ruddick) (B platoon). When he asked what she was off with, Lee informed him that, under HIPPA, he was not permitted to ask that question. Ruddick responded: Im a commanding officer here at this station, and you will answer me. The station log for that day reports that Lee called in to report an off-duty injury, which requires a doctors note to return to work. Before she was due to report back to work Ruddick called her to tell her to bring a doctors note to return to duty. Lee responded that she did not need one because she had not been out for more than 48 hours.

When Lee returned to work, she was summoned to the front office. Five captains -- Hare, Elder, Ruddick, McMaster, and Barrios -- were all waiting for her. Upon being question by Ruddick about the mistreatment she had been suffering, Lee indicated that she wanted a union representative present. The captains continued to attempt to question her, and she continued to indicate that she didnt feel comfortable in that setting. She asked for a union representative about four or five times, but no one stopped the meeting to allow her to get one. Lee did not answer any of the questions that Ruddick asked her. On the way out, she indicated that she wanted to talk to the Chief. In response, Elder asked her, Do you have your doctors note? Although Lee pointed out that she had only been off for a 24-hour period, Elder nonetheless insisted that she had to produce a doctors note to return to duty. Lee stated that she had left the note at home, and proceeded to drive to West Hills Hospital to obtain a note. She obtained a note from Nurse Whitman, who provided the note even though Lee had not received any treatment.

After obtaining the note, Lee proceeded to go home because she was not scheduled to work for another six days. When she was at home, she received a call from James, who asked her to come to his office for a meeting. A meeting ensued between Lee, James and Rose. James indicated a desire to learn what was going on at Station 96, and asked Lee what had happened there that day. Lee explained the situation about the doctors note. Rose stated: As a favor to me, Brenda, I would appreciate it if you would come in to work right now because I need the staffing. When Lee explained that her note would not permit her to return to work yet, Rose indicated that would not be a problem. Lee agreed to return to work that day.

Lee went home, picked up her doctors note, and reported to Station 96. As she arrived, James pulled up beside her and asked whether she had talked to Elder. She said no, and gave the doctors note to James. A few hours later, Rose, who had personally asked her to return to work that day, confronted her, yelling: A nurse cannot return you to duty. Only a doctor can. Lee indicated her belief that her note was proper, and Rose angrily said Im going to check the books. Failing to find anything, Rose stated that he was going to do more research.

Following this confrontation, Lee called James. She said she didnt feel comfortable and she didnt appreciate Rose getting in [her] face as he did. She told James that she would like to go home on stress, and he agreed. James confirmed that, during his conversation with Lee about this confrontation with Rose, Lee had informed him that Rose yelled at her, made her fear that he would strike her, and made her fear for her safety.

August 21, 2004, was Lees last day of work at Station 96.

9. After leaving Station 96 due to stress, Lee is detailed to numerous other stations

Four days after she left Station 96 on stress, James told Lee that she was going to be detailed to another station. Detailing means that she could be moved to another station at any time. Between August 2004 and December 2004, Lee worked 68 shifts at 11 different fire stations.

In mid-December 2004, while Lee was detailed at Station 83, advocates came and interviewed her about the charges she had made at Station 96 nine months earlier. When the advocates sought to speak to Lees life partner, Jayna, Lee was shocked and upset. After this interview, Lee went on stress leave.

10. Lees last transfer to Station 72

About one month later, in January 2005, Elder called to instruct Lee that she had been transferred to Station 72. Battalion Chief Peaks (Peaks) at Station 72 had called James that morning, as the battalion commanders normally do each morning. James informed him that Lee would be returning to duty that morning at Station 72. When asked why he gave Peaks this information, James stated: Because of past experiences that we have had with firefighter Lee and other assignments. With this phone call between Peaks and James, Lee asserts, James had already poisoned the Station 72 command against her. On her first day, she confined herself to the womens locker room for most of the afternoon because she had been forewarned by a colleague that they were going to set [her] up for a hostile work environment claim.

After dinner, Lee was called to the office, where she was asked to have a seat before James, Peaks, Captain Waite, and Captain Pearson. James informed Lee that she had been accused by a rookie firefighter, Dustin Gates, of intimidation. James explained that Gates claimed that she bumped him on the shoulder and that he felt intimidated by that.

Lee did not recall any such incident. She began to cry. James did not ask Lee her side of the story. Instead, he declared that they were sending her home. He asked her to report to operations the next day. Peaks gave her a sticky with a phone number on it, and Lee was told to call the number every day until we figure out what to do with you. James told her: Turn in your key. Take all your equipment with you. Stay off fire department property.

James recommended to the bureau commander that Lee be evaluated for work fitness.

11. Work fitness evaluation

In February 2005, Peaks called Lee and ordered her to see a psychologist, Dr. Shirley St. Peter (St. Peter), who worked with the medical services division of the City of Los Angeles. St. Peter had reviewed Lees personnel package and other documents in connection with the evaluation.

On February 7, 2005, Lee reported to the evaluation. St. Peter attempted to talk to Lee about reported incidents involving alleged aggressive conduct by Lee, but the interview was difficult because Lee felt that she hadnt done most of the things [St. Peter] had been told about. Lee also refused to release her therapists records to St. Peter. Because of Lees refusal to release records and refusal to talk about the incidents of concern, St. Peter wasnt able to work with her.

St. Peter referred Lee to Dr. Levitan (Levitan), an openly gay psychologist who works for the city, with the hope that Lee would feel more comfortable. Levitan was a specialist assigned to do cognitive assessments for employees having performance problems. However, Lee felt that because Levitan worked for the city, a conflict of interest existed. Levitan rescheduled the initial testing because of Lees anger and resistance to the testing. However, the testing was performed at a later date and Levitan concluded that Lee had cognitive problems in two major areas: working memory and visual spatial organization. In May 2005, Lee was informed that she was unfit for duty and could not return to the LAFD.

The city offered Lee a job as an analyst. She rejected this offer. The LAFD continued to try to find suitable alternative employment for Lee.

Lee presented evidence regarding the impact of the loss of her job as a firefighter on her life. She had nightmares and developed TMJ, which would cause her jaw to lock. She experienced nausea and vomiting and broke out in hives and rashes. Since December 2005, Lee has been treated by a clinical psychologist, Dr. Allan Gerson, who explained that Lee suffered from symptoms of anxiety, depression, impaired sleep, crying episodes, withdrawal, diminished interest and motivation, diminished self-worth, weight loss, and irritability, among other things. Lee explained that losing [her] job tore [her] world apart. She still believes in going out and helping people, and still wants to be a firefighter.

PROCEDURAL HISTORY

Lees DFEH charge, filed June 16, 2004, alleged harassment, discrimination, and retaliation. She was issued a right-to-sue notice on the alleged claims on July 20, 2004. On July 19, 2005, Lee filed her civil complaint, which included allegations that the city refused to permit [her] to return to work under the pretext that she was psychologically unfit to be a firefighter. In its answers, the city raised as an affirmative defense Lees failure to exhaust her administrative remedies.

The city moved for judgment on the pleadings on the ground that Lee had failed to exhaust her administrative remedies. Lee opposed, arguing that the allegations regarding her termination as a firefighter in May 2005 were like or reasonably related to the conduct complained of in her June 2004 DFEH charge. At a hearing held on June 18, 2007, the trial court announced its decision to deny the citys motion. While acknowledging that the motion was properly before the court at that juncture, the court expressed that the motion was something that should have or could have been brought much earlier. The court then stated: However, its deficient on a factual basis. And thats all I can conclude. The court also denied certain of the citys motions in limine, in which the city argued that the trial court should exclude incidents not alleged in [the] DFEH complaint and evidence of damages from actions of which there is no exhaustion perfection.

At the close of Lees case-in-chief, the city moved for a directed verdict, asserting the courts lack of jurisdiction over Lees wrongful termination claim. The court denied the motion.

Following a three-week trial, the jury returned a special verdict in favor of Lee on her claims against the city for harassment, discrimination, retaliation, and failure to take reasonable steps to prevent discrimination, harassment or retaliation. Lee was awarded $6,214,927 in damages. This award included $305,523 in past economic loss, $3,189,404 in future economic loss, $1,360,000 in past non-economic loss, and $1,360,000 in future non-economic loss. The jury also returned a special verdict in favor of Lee on her claims against Hare, and awarded $2,500 in punitive damages.

Following entry of judgment, the city filed motions for judgment notwithstanding the verdict and for new trial. The court denied both motions. The city appealed from the adverse judgment and from the denial of its motion for judgment notwithstanding the verdict.

DISCUSSION

I. Standards of review

The critical issue in this matter involves the California Fair Employment and Housing Act (FEHA) (Gov. Code, 12900 et seq.).[3] Section 12965, subdivision (b) mandates that, before filing a civil claim for violation of the FEHA, an employee must exhaust her administrative remedies by filing a complaint with DFEH and must obtain from [DFEH] a notice of right to sue in order to be entitled to file a civil action in court. (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.) The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA. [Citations.] (Ibid.) If a complaint regarding the alleged unlawful practice is not filed with DFEH, the court is without jurisdiction to consider the employees claim. (Baker v. Childrens Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1062 (Baker).)

The critical question in this appeal is whether Lee exhausted her administrative remedies, thus satisfying the jurisdictional prerequisite set forth in section 12965, subdivision (b). The question of whether a court has properly exercised its jurisdiction is a question of law, subject to de novo review. (Robbins v. Foothill Nissan (1994) 22 Cal.App.4th 1769, 1774.) Whether a plaintiff has satisfied the statutory precondition to filing suit is also a question of law reviewable de novo. (Vinieratos v. United States (9th Cir. 1991) 939 F.2d 762, 768 & fn. 5.)[4] To the extent that the trial court resolved any conflicting facts in connection with this issue, we review such factual findings for substantial evidence. However, the trial courts conclusions of law based upon its findings of fact are reviewed de novo. (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.)

The trial courts denial of the citys motions in limine are reviewed for abuse of discretion. While a trial courts discretionary power is broad, it is subject to the limitations of legal principles. (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) Thus, [a]ction that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an abuse of discretion. [Citation.] (Ibid.)

II. Overview of FEHA and exhaustion of administrative remedy requirement

It is fundamental that . . . where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act. [Citation.] (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1612 (Okoli).) All of the allegations in Lees complaint concern unlawful employment practices for which an administrative remedy is provided by FEHA.

FEHA provides that freedom from job discrimination based on race, sex, age, and other enumerated factors, is a civil right. ( 12921.) Such discrimination is against public policy and constitutes an unfair employment practice. ( 12920, 12940, 12941.) It is also an unfair employment practice to retaliate against an employee because the employee has opposed an unlawful employment practice, filed a complaint, testified, or assisted in any proceeding. (Okoli, supra, 36 Cal.App.4th at p. 1613.) FEHA creates an administrative agency, the DFEH, whose task it is to receive, investigate and conciliate complaints of unlawful employment discrimination ( 12930, 12963 et seq.). (Okoli, at p. 1613.)

A person claiming to be aggrieved by an unfair employment practice must:

[File with the DFEH] a verified complaint, in writing, that shall state the name and address of the person, employer . . . alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department. ( 12960, subd. (b).)

Once a complaint is filed, the DFEH must investigate it promptly ( 12963) and attempt to resolve the matter, in confidence, by conference, conciliation, and persuasion. ( 12963.7.) If, following receipt of a complaint, the DFEH fails to resolve the case or file an accusation against the employer within 150 days, it must notify the employee and thereby provide the employee her right-to-sue notice. ( 12965, subd. (b).)

In the context of FEHA, exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts. (Okoli, supra, 36 Cal.App.4th at p. 1613.) To exhaust his or her administrative remedies as to a particular act made unlawful by the Fair Employment and Housing Act, the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts. [Citation.] (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724 (Martin), italics added.) The purpose of this requirement is to ensure that the agency has the opportunity to investigate the charges and obtain voluntary compliance with the law. If acts not specified in the administrative charge are not like or reasonably related to those charges put before the DFEH, and were not likely to be uncovered in the course of a DFEH investigation, then a civil suit on those acts is barred. (Okoli, supra, at p. 1617.)

III. Lees DFEH complaint did not satisfy the jurisdictional prerequisite for a civil suit regarding events which took place after her right-to-sue letter issued

As set forth above, Lees administrative charge was filed on June 16, 2004. Her right-to-sue letter was issued just over a month later, on July 20, 2004. It was not until nearly a year later, in May 2005, that she was advised that she was unfit for duty and could not return to the LAFD.

The allegations of Lees administrative charge covered acts occurring from 8/03 to present. She named Elder and Hare as the perpetrators of the illegal acts, which consisted of harassment, denial of accommodation, denial of family or medical leave, and retaliation for complaining of discrimination. Lee elaborated that she had suffered racial comments, derogatory comments, [and] threats (like Im going to get her). While these charges would likely have led DFEH to investigate all of the harassment that Lee suffered at the hands of Elder and Hare during her time at Station 96, it is unreasonable to assume that they would have provided DFEH the opportunity to investigate any of the incidents that occurred after the DFEH investigation closed in July 2004, including the set up at Station 72; the harassment alleged at the hands of Rose, Peaks, and James; the circumstances surrounding the work fitness evaluation; or the citys decision that Lee was unfit to return to duty.

Lee did not list Rose, Peaks, or James as perpetrators of harassment or discrimination in her administrative charge. She did not make any mention of being forced to submit to an improper or biased work fitness evaluation. She did not check the available lines on the DFEH form that she filled out signifying that she was fired, laid off, demoted, forced to quit, or denied employment. Without reference to any such act, the DFEH had no opportunity to investigate it. This is significant, because if the DFEH had issued an accusation and determined that such a charge was valid, it had the power to order her reinstatement, with or without back pay, despite oral argument that reinstatement was unlikely on these facts. ( 12970, subd. (a)(1).) Because these charges were not before the DFEH, it had no opportunity to attempt to work out voluntary compliance on the part of the city.

The purpose of the charge is to supply fair notice of the facts, sufficient to permit investigation [Citation.] (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 630, italics added & overruled on other grounds; see also Sanchez v. Standard Brands, Inc. (5th Cir. 1970) 431 F.2d 455, 462 [the crucial element of a charge of discrimination is the factual statement contained therein].) And while a plaintiff is not held to specify the charges with literary exactitude, (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 381 (Soldinger)), the particulars of the act or acts must be set forth. ( 12960, subd. (b); Okoli, supra, 36 Cal.App.4th at p. 1613 [to exhaust his or her administrative remedies as to a particular act made unlawful by the FEHA, the claimant must specify that act in the administrative complaint].) In addition, the perpetrators of the acts at issue must be named. (See id. at p. 1617 [[S]o far as the record shows the DFEH never did learn of [Okolis] assertion that, in addition to the [racial] discrimination of which [he] originally complained, [he] had been a victim of [unlawful retaliation occurring after the filing of the DFEH charge and involving a different supervisor]]; Yurick v. Superior Court (1989) 209 Cal.App.3d 1116 [where plaintiff attempted to include civil allegations concerning a supervisor not mentioned in administrative charge, plaintiff not permitted to pursue that cause of action].) Lees charge did not provide DFEH with the opportunity to investigate any of her claims of unequal treatment occurring after she left Station 96 -- including her claim that she was unfairly denied the right to return to her position as a firefighter.

IV. DFEH did not have an opportunity to investigate Lees allegations regarding incidents occurring after she left Station 96

State law interpreting FEHA, and federal law interpreting title VII, provides a plaintiff with some leeway to pursue claims in court that were not in the plaintiffs administrative charge. However, such claims must be like or related to the claims set forth in the administrative complaint. (Baker, supra, 209 Cal.App.3d at p. 1064.)

As set forth in Okoli, supra, 36 Cal.App.4th at page 1614:

[W]hen an employee seeks judicial relief for incidents not listed in his original charge to the [administrative agency], the judicial complaint nevertheless may encompass any discrimination like or reasonably related to the allegations of the [agency] charge, including new acts occurring during the pendency of the charge before the [administrative agency]. [Citation.] (Fn. omitted., italics original.)

This standard allows a plaintiff to elaborate on charges made with the agency, or describe new unlawful acts, as long as the agency has had a reasonable opportunity to investigate those acts. (See also Sanchez v. Standard Brands, Inc., supra, 431 F.3d at p. 466 [the allegations in the judicial complaint may encompass any kind of discrimination like or related to allegations contained in the charge and growing out of such allegation during the pendency of the case before the (agency)].) For example, in Soldinger, the plaintiff filed two charges with the DFEH. The first alleged religious discrimination and wrongful discharge. After the plaintiff was reinstated, she filed a second charge with the DFEH alleging retaliation for filing the first DFEH complaint. Her civil action, filed after the second DFEH charge, included a claim of retaliation for bringing the civil lawsuit. In determining that the trial court had jurisdiction over this second retaliation claim, the court focused on the likely scope of the DFEH investigation:

Even if the second DFEH charge did not specifically include contentions of retaliation based upon filing the civil lawsuit, it did allege [defendant] retaliated against Soldinger because she had accused [defendant] of discrimination. Given the facts of this case, DFEH reasonably would have investigated all aspects of Soldingers claims of retaliation in investigating her second charge. The incidents had either already occurred . . . or were ongoing . . . .

(Soldinger, supra, 51 Cal.App.4th at p. 382, italics original.)

In Baker, the court reached a similar result. The plaintiff and other employees had filed an internal grievance against the employer hospital and their supervisor in August 1984, alleging racial discrimination. In May 1985, the plaintiff filed a charge with DFEH alleging racial discrimination and the denial of opportunity to work on-call hours. In his civil complaint, the plaintiff expanded upon these charges, alleging harassment and differential treatment based on race, and further alleging retaliation arising from the internal grievance filed in August 1984. In determining that Bakers action was not barred by the exhaustion doctrine, the court again focused on the scope of DFEHs investigation. The court explained that the scope of the judicial complaint is limited to the scope of the . . . investigation which can reasonably be expected to grow out of the charge of discrimination. (Baker, supra, 209 Cal.App.3dat p. 1064, quoting Sanchez v. Standard Brands, Inc., supra, 431 F.2d at pp. 465-466.) The court concluded that the allegations of harassment and differential treatment encompass the allegations of discrimination in his DFEH complaint. Moreover, it is reasonable that an investigation of the allegations in the original DFEH complaint would lead to the investigation of subsequent discriminatory acts undertaken by respondents in retaliation for appellants filing an internal grievance. (Baker, supra, at p. 1065.) Baker was not attempting to sue for incidents occurring after the DFEH investigation closed. Instead, the court assumed that all of the harassment and discrimination that he suffered during the relevant time period, including that which was motivated by retaliation, would reasonably have been included in the DFEH investigation.

In this case, it is not reasonable to assume that a DFEH investigation of Lees charges would have encompassed any of the acts occurring after her right-to-sue letter was issued in July 2004. In determining whether a plaintiff has exhausted allegations that she did not specify in her administrative charge, it is appropriate to consider such factors as the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, perpetrators of discrimination named in the charge, and any locations at which discrimination is alleged to have occurred. (B.K.B. v. Maui Police Dept (9th Cir. 2002) 276 F.3d 1091, 1100.) Considering these four factors, we must conclude that Lees claims involving acts that occurred after Lee left Station 96 were not administratively exhausted. While the basis for the discrimination remained constant, many of the acts alleged in her complaint took place during a later time period than that specified in her charge, were carried out by different perpetrators, and occurred at different employment locations. A reasonable investigation of Lees administrative charge would not have focused on anything beyond Lees claims of harassment, discrimination, and retaliation perpetrated by Elder and Hare while Lee was serving at Station 96. The trial court had no jurisdiction to hear her claims based on allegations concerning her brief placement at Station 72, her work fitness evaluation, or her inability to return to her position as a firefighter.

V. The manner in which Lee has framed her complaint does not alter the outcome under FEHA

Lees main argument against application of the exhaustion doctrine is based on the way that she has crafted her complaint. Lee accuses the city of stating a recurring falsehood by suggesting that Lee prosecuted and prevailed on a wrongful termination claim. Lee insists that her civil complaint alleged only retaliation, discrimination, and harassment -- the same allegations made in her DFEH complaint. Lee also asserts that she did not recover on a wrongful termination theory -- the special verdict form showed that the jury found in favor of her on the same four claims listed in her complaint. Because Lee did not specifically state a cause of action for wrongful termination, she argues, the citys claim of failure to exhaust administrative remedies is misplaced.

However, the named causes of action do not necessarily define the scope of a complaint. Instead, it is the allegations in the body of the complaint, not the caption, [which] constitute the cause of action against the defendant. (Davaloo v. State Farm Insurance Co. (2005) 135 Cal.App.4th 409, 418.) Lee admits that, as part of her claims, Lee listed eight adverse actions, including the citys [refusal] to permit [Lee] to return to work under the pretext that she was psychologically unfit to be a firefighter. And Lee cannot dispute the extensive evidence produced at trial regarding the chain of events which led to this adverse action, including the set up at Station 72 and the details regarding the work fitness evaluation. Lee testified to the physical and emotional injuries she suffered as a result of the loss of her job as a firefighter, including the fact that it tore [her] world apart and that she felt like a broken puzzle . . . scattered. In addition, Lees expert, Stephanie Rizzardi-Pearson, testified at length about Lees loss of wages and benefits after she was terminated in May 2005 from Station 72. Rizzardi-Pearson admitted that her evaluation of Lees economic losses was based on (1) lost wages, including overtime wages, and (2) loss of benefits, including pension and medical benefits. Significantly, Lees expert used March 28, 2005, as the starting point for past losses, because . . . as of that date she was no longer working. The jury verdict specified that past and future economic losses are comprised of lost earnings, lost pension, and medical benefits. Had DFEH had the opportunity to intervene on Lees behalf, these damages could have been avoided.

All of this evidence had not been considered by DFEH and therefore was outside the scope of the trial courts jurisdiction. While these claims were not set forth in a separate, severable cause of action, as Lee points out -- they were intertwined with each of her claims for relief. Because the loss of her position as a firefighter was the claim which caused economic injury, the loss of her job was an adverse action which had an impact on her damages at trial. Lee cannot fairly include testimony and evidence regarding her inability to return to work without first exhausting her administrative remedies regarding that adverse action. Lees failure to allege a specific cause of action based on wrongful termination does not absolve her of her obligation to exhaust her administrative remedies.

VI. Case law does not support Lees position that only a new legal theory is precluded

Lee argues that the case law on exhaustion of remedies prevents only the introduction of new legal theories of recovery in court. She argues that the city concedes that the proper focus must be on the specific employment practice at issue. However, Lee contends, the city is transmuting the concept of employment practice into specific wrongful acts. Lee asserts that because she alleged the very legal theories upon which she ultimately recovered (discrimination and harassment based on her gender, race and/or sexual orientation, and retaliation for complaining about discrimination) [the citys] exhaustion defense fails.

We disagree with Lees interpretation of the relevant case law. Lee focuses her argument on Martin which states that: To exhaust his or her administrative remedies as to a particular act made unlawful by the Fair Employment and Housing Act, the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts. [Citation.] (Martin, supra, 29 Cal.App.4th at p. 1724, italics added.) Lee argues that, in concluding that the plaintiff could pursue charges of age discrimination, but could not pursue charges of sexual discrimination and harassment, the Martin court was using the word act to denote legal theories, not specific discriminatory actions.

We find that the question of whether a trial court has jurisdiction over FEHA claims is not dependent upon whether those claims involve specific acts versus legal theories. Instead, as the Martin court agreed, the question of jurisdiction depends upon whether the scope of the DFEH investigation would have included those charges:

[T]he only claim before the DFEH in April 1991 was that Martin had been a victim of age discrimination. We cannot know how the DFEH would have reacted to the additional claims Martin made nearly a year later, because so far as we are aware those additional claims never reached the DFEH.

(Martin, supra, 29 Cal.App.4th at p. 1729.)

Similarly, here, the only claims before the DFEH were Lees claims that she had been a victim of harassment, denial of accommodation, denial of family or medical leave, and retaliation for complaining of discrimination. We cannot know how the DFEH would have reacted to a claim that, nearly a year later, she was not permitted to return to her position as a firefighter. That additional claim never reached the DFEH and could not have been within the scope of its investigation.[5]

VII. Conclusion

We have determined that the trial court had no jurisdiction to hear allegations concerning acts which were not included within the scope of the DFEH investigation of Lees June 16, 2004 charge. The trial courts denial of the citys motions in limine seeking to exclude evidence of these incidents was contrary to established law and constituted an abuse of discretion. (City of Sacramento v. Drew, supra, 207 Cal.App.3d at p. 1297.)

DISPOSITION

The judgment is reversed, and the case remanded for a new trial limited to the issues over which the trial court has jurisdiction. Each side to bear their own costs.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

__________________________, J.

CHAVEZ

We concur:

___________________________, P. J.

BOREN

__________________________, J.

ASHMANN-GERST

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[1] Lee objects to the use of the term termination, as she claims she was merely on unpaid leave from May 2005 through the time of trial and was never actually terminated from her employment. However, as the city points out, the damages awarded to her were based on lost wages she suffered during the time of unpaid leave and into the future, on the assumption that she would not return to her position as a firefighter. Thus, we use the term termination in this opinion with the understanding that the citys refusal to allow her to return to her job as a firefighter now and in the future amounts to a termination from that position.

[2] The city contends that, in her sworn answers to the citys interrogatories, Lee provided a very different description of the fight with Wible. Although defense counsel stressed the importance of Lees sworn answers to impeach her trial testimony, the court excluded them. The court also excluded the testimony of Wible given at the Bressler trial, although Wible, who had a heart attack during Lees trial, was unavailable to testify. Because the case will be reversed and remanded on other grounds, we do not reach this issue.

[3] All further statutory references are to the Government Code unless otherwise specified.

[4] FEHA has its federal counterpart in title VII of the Federal Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.). Since the antidiscrimination objectives and public policy purposes of the two laws are the same, we may rely on federal decisions to interpret analogous parts of the state statute. [Citations.] (Sandhu v. Lockheed Missiles & Space Co. (1994) 26 Cal.App.4th 846, 851.) Relevant federal case law is therefore cited and relied upon throughout this opinion.

[5] Because we have determined that the matter must be reversed and remanded for a new trial limited to issues within the trial courts jurisdiction, we need not and do not reach the citys remaining claims that (1) substantial evidence did not support the verdict, and (2) the court erroneously precluded critical evidence.