OSCAR CIELOS v. SAN JOSE UNIFIED SCHOOL DIST.

Case No.:  1-14-CV-261786

DATE:  September 4, 2014

TIME:  9:00 a.m.

DEPT.: 3

Defendants’ request for judicial notice of two documents (exhibits A and B) is GRANTED pursuant to Evid. Code §452(d).

The Court treats Defendants’ motion as a Motion for Judgment on the Pleadings (“JOP”) pursuant to CCP §438(c)(1)(B)(i) (“[t]he Court has no jurisdiction of the subject of the cause of action alleged in the complaint.”)  The JOP motion is GRANTED as follows.  Plaintiff is required to exhaust his administrative remedies before the PERB before proceeding in this Court.  Pursuant to the EERA, Gov. Code §3541.5, the PERB has exclusive initial jurisdiction over claims of unfair practices brought against a school district by an employee.  The PERB is empowered to “to issue a decision and order directing an offending party to cease and desist from the unfair practice and to take such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as will effectuate the policies of this chapter.”  Gov. Code §3541.5(c).  The PERB’s exclusive initial jurisdiction extends to all disputes regarding conduct which arguably could give rise to an unfair practice claim, regardless of the labels attached to claims by a plaintiff and exhaustion is required even if the PERB may lack jurisdiction over all of the issues presented.  See Personnel Com. v. Barstow Unified School District (1996) 43 Cal App 4^th 871, 885-889 (Barstow).  See also International Federation of Prof. & Technical Engineers v. Bunch (1995) 40 Cal App 4^th 670, 677 (allegations of constitutional violations do not warrant judicial intervention prior to final determination by PERB).

It is undisputed here that Plaintiff has initiated PERB proceedings alleging unfair practice claims against not only the moving Defendants but also the San Jose Teachers’ Association, a former defendant in this action.  See Ex. A to Defendants’ RJN, which establishes the existence of Plaintiff’s Unfair Practice Charge against the Teachers’ Association.  All of Plaintiff’s claims in his verified FAC are based on, and expressly incorporate, the allegations that also form the basis of the unfair practice claims against the District and Teachers’ Association.  See FAC at 11-46.  The alleged unfair practices (including the alleged improper evaluation of Plaintiff) and alleged FEHA claims for discrimination are linked because Plaintiff’s purported disability (anxiety and depression) on which his FEHA claims are based is alleged to have come into being in late Jan. 2014 after his Oct. 2013 evaluation and Jan. 16, 2014 written reprimand.  Plaintiff alleges the disability was caused by these events.  See FAC at 54.  The 5^th cause of action for whistleblower retaliation (Labor Code §1102.5) alleges that Plaintiff’s contract was not renewed because he made a claim with the DFEH alleging that Defendants policies’ did not follow the law.  It is thus apparent that the remaining claims in this action are based upon issues within the exclusive initial jurisdiction of the PERB and allowing the PERB to make determinations as to those matters within its jurisdiction may clarify, and possibly resolve, Plaintiff’s remaining claims.

Plaintiff’s argument in opposition that he may proceed with his FEHA claims without waiting for the PERB proceedings he has initiated to conclude, citing Schifando v. City of Los Angeles (2003) 31 Cal 4^th 1074, is unpersuasive.  In Schifando, the Supreme Court held that a public employee who claims to have suffered employment-related discrimination need not exhaust an available internal administrative remedy with his employer prior to suing on an FEHA claim. (31 Cal.4^th at 1092.).  This holding is distinguishable from the situation here.  The EERA is not a regulation or policy enacted by a city or county or some other subordinate political subdivision of the state or a formal process put in place by a private employer, it is a detailed statutory scheme enacted by the Legislature that is of a co-equal status with the FEHA.  Moreover, unlike the FEHA, the EERA expressly states that the “exclusive jurisdiction” to make an “initial determination” as to whether charges of unfair practices are justified is given to the PERB.  The most logical way to harmonize these co-equal statutes is to require Plaintiff to first allow the PERB to resolve his unfair practices claims before proceeding any further in this Court.

Plaintiff’s further argument that the PERB lacks jurisdiction over his FEHA claims is not supported by the authority cited and is irrelevant to the determination that the PERB has exclusive initial jurisdiction over any allegations that may give rise to a claim of unfair practices, regardless of the labels selected for such claims by Plaintiff.  See Barstow, supra, at 889, citing Link v. Antioch Unified School Dist. (1983) 142 Cal App 3d 765, 769 (“[T]o hold otherwise would permit a party to avoid exhaustion merely by avoiding any express claim of unfair practice or other EERA violation in its complaint.”)  Plaintiff makes no argument regarding his whistleblower retaliation claim.

To the extent the relationship between the co-equal EERA and FEHA statutes may create concurrent jurisdiction between the Court and the PERB that requires an accommodation the Court can satisfy that requirement by staying this action until the final conclusion of the PERB proceedings brought by Plaintiff rather than dismissing this action outright for failure to exhaust administrative remedies with the PERB.  See Barstow, supra, at 892.

Given the Court’s decision to stay this litigation until the conclusion of the PERB proceedings in case further judicial relief is required, the Court will not rule on Plaintiff’s Demurrer to the District’s Amended Answer.