Robinson v. Department of Fair Employment & Housing

Opinion

WALLIN, Acting P. J.

The Department of Fair Employment and Housing (Department) and the Fair Employment and Housing Commission (Commission) appeal a judgment issuing a writ of mandate commanding them to withdraw an accusation of sex discrimination against Dr. J. E. Robinson, a dentist. Appellants contend the superior court was without jurisdiction to grant the writ because Robinson failed to exhaust his administrative remedies under the California Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) Appellants are correct; this threshold issue is dispositive, and the judgment must be reversed.

Robinson employed six persons in his dental office. His receptionist worked five full days a week, his two dental assistants each worked four and one-half days, and his three dental hygienists each worked from one to four days a week. Real party in interest, Josephine Grace Saul, was a dental assistant in Robinson’s office for several years before taking a six-week maternity leave. She was terminated on the day she returned to work. Saul filed a complaint with the Department alleging Robinson discriminated

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against her because of her sex. The Department, after conducting a preliminary investigation, filed an accusation with the Commission. The case was then scheduled for an administrative hearing.

Rather than participate in the hearing, Robinson petitioned the superior court for a writ of mandate claiming he was not an employer under the FEHA because he did not regularly employ five or more persons. The court granted the petition, finding Robinson’s failure to exhaust his administrative remedies did not bar judicial review and the Department and the Commission were without jurisdiction to proceed with the accusation against him.

The FEHA provides an elaborate scheme of a hearing (Gov. Code, §§ 12967, 12968, 12969, 12972, 11513), administrative review (Gov. Code, § 11517), and reconsideration (Gov. Code, § 11521). After these proceedings, written findings of fact and a determination are issued (Gov. Code, § 12970) and the decision is thereafter subject to judicial review by a petition for a writ of mandate (Gov. Code, § 11523, Code Civ. Proc., § 1094.5). The jurisdictional defect alleged by Robinson would have been considered by the Commission at the hearing on the merits had he chosen to participate. (Cal. Admin. Code, tit. 2, § 7440.) However, he sought to bypass this statutory scheme to resolve employment issues administratively by first seeking recourse in the superior court.