Bennett v. Borden, Inc.

California Court of Appeal Jan 15, 1976 No. Civ. 15046Published

Before: Friedman

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Holding. The court held that the plaintiff's failure to exhaust administrative remedies under the Fair Employment Practice Act deprived the court of jurisdiction to hear his age discrimination claim. Consequently, the summary judgment in favor of the employer was affirmed.

Issues

Whether a plaintiff must exhaust administrative remedies under the Fair Employment Practice Act before filing a civil action for age discrimination.
Whether the administrative remedy provided by the Fair Employment Practice Act is inadequate when a plaintiff seeks only monetary damages rather than reinstatement.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Exhaustion of the remedy is a jurisdictional prerequisite to resort to the courts.”

“We conclude that plaintiff had an administrative remedy which he failed to exhaust; that the courts are without jurisdiction to entertain the present lawsuit.”

Opinion

FRIEDMAN, Acting P. J.

Plaintiff filed this civil action for damages and injunctive relief against his former employers in August 1973, alleging that he had been relieved of his job as plant superintendent in April 1973 solely because of his age and that he had been replaced by a younger person. In October 1974 defendants’ motion for summary judgment was granted, on the ground that plaintiff had failed to exhaust his administrative remedies within one year from his April 1973 discharge. Plaintiff appeals from the summary judgment.

The Fair Employment Practice Act declares that the discharge of an employee between the ages of 40 and 64 solely on the ground of age is an unlawful employment practice. (Lab. Code, § 1420.1, enacted in 1972.) The act further provides that a person claiming to be aggrieved by an unlawful employment practice may within one year file a verified complaint with the Fair Employment Practice Commission, which shall then notify the employer, conduct an investigation, and, if warranted, file a written accusation against the employer and hold a hearing. (Lab. Code, §§ 1422-1425.) If the commission finds that the employer has engaged in an unlawful labor practice, it may issue an order requiring the complainant’s reinstatement with or without back pay. (Lab. Code, § 1426.)

[709]

Plaintiff’s complaint and affidavit did not allege institution or completion of proceedings before the Fair Employment Practice Commission. In support of their summary judgment motion, defendants filed a declaration of B. J. Miller, an investigator for the Fair Employment Practice Commission, who stated that the agency’s files disclosed no complaint of plaintiff charging employment discrimination because of age. In his declaration Mr. Miller stated that he recalled having an interview with plaintiff in the FEPC office; that he had never prohibited plaintiff or any other person from filing a claim with the agency.

If an administrative remedy is provided by statute, a litigant must ordinarily show that he has invoked and exhausted the remedy before resorting to the judicial process.

(Top Hat Liquors

Department of Alcoholic Beverage Control,

Bennett v. Borden, Inc.

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