Schifando v. City of Los Angeles

BAXTER, J., Dissenting.

The issue in this case is whether an employee who believes he has suffered disability discrimination as a result of a coerced resignation at the hands of a city employer must exhaust both the internal administrative remedy provided for such claims in the city charter and the separate administrative remedy provided by the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) before filing an FEHA-based action in superior court. The majority concludes the employee need not exhaust both administrative remedies, and that receiving a Department of Fair Employment and Housing (Department) “right to sue” letter is a sufficient prerequisite to filing a disability discrimination action in court. I disagree.

The majority’s holding today will authorize, if not encourage, public employees to forgo the very comprehensive internal grievance procedures that are designed to protect and vindicate their employment rights— procedures that also serve the dual purpose of affording public entities, such as charter cities and counties, the opportunity to exercise their constitutionally vested decisionmaking authority over matters of public employment, including employee appointment, compensation, tenure, and discharge or removal. (See County of Riverside v. Superior Court (2000) 30 Cal.4th 278, 282 [132 Cal.Rptr.2d 713, 66 P.3d 718].) The majority’s holding could effectively eviscerate the municipality’s internal remedies for redressing employment discrimination afforded city employees under the city charter. This court has observed that in enacting the FEHA, “[t]he 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 . . . .” (State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 431 [217 Cal.Rptr. 16, 703 P.2d 354], italics added (State Personnel Bd.).) I conclude the Legislature did not intend the FEHA to supplant all local jurisdiction and decisionmaking authority over a city employee’s employment discrimination claims, much less abrogate the venerable rule of exhaustion of administrative remedies as applied in this context.

To the contrary, the specific city charter provision here in issue required plaintiff to avail himself of the city’s internal employee grievance procedures as a condition precedent to filing suit in court long before the FEHA and its predecessor statute were enacted. Had the Legislature intended to preempt public municipalities from exercising their constitutional authority over their employees’ labor grievances in the first instance, and at the same time abrogate the rule requiring exhaustion of administrative remedies in this *1094context, surely it knew how to do so, and would have done so, directly and expressly. (See Rojo v. Kliger (1990) 52 Cal.3d 65, 75 [276 Cal.Rptr. 130, 801 P.2d 373] (Rojo) [if the Legislature had intended to repeal other applicable laws, “it plainly knew how to do so”].) Accordingly, under settled principles of statutory construction, and in the absence of clear evidence to the contrary, we must infer that the Legislature did not intend to preempt public municipalities from exercising their constitutionally based jurisdiction over their employees’ labor grievance claims by exempting public employees who choose to bypass their internal remedy and file an FEHA-based action directly in court from the long-standing exhaustion requirement. As will be shown, various decisions of this court support that conclusion. For these reasons, I respectfully dissent.

It is a settled and fundamental rule of procedure 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.” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292 [109 P.2d 942] (Abelleira).) Abelleira explained that the requirement of exhaustion of administrative remedies is “a jurisdictional prerequisite to resort to the courts.” (Id. at p. 293.) “ ‘The administrative tribunal is created by law to adjudicate the issue sought to be presented to the court. The claim or “cause of action” is within the special jurisdiction of the administrative tribunal, and the courts may act only to review the final administrative determination. If a court allowed a suit to be maintained prior to such final determination, it would be interfering with the subject matter jurisdiction of another tribunal. Accordingly, the exhaustion of an administrative remedy has been held jurisdictional in California.’ ” (Lopez v. Civil Service Com. (1991) 232 Cal.App.3d 307, 311 [283 Cal.Rptr. 447], citing 3 Witkin, Cal. Procedure (3d ed. 1985) Actions, § 234, p. 265.)

The doctrine of exhaustion of administrative remedies serves several important functions. It gives the administrative body with jurisdiction over a claim an opportunity to redress the claimed wrong, or possibly mitigate the claimant’s damages, short of costly litigation in the courts. (Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 501 [87 Cal.Rptr.2d 702, 981 P.2d 543].) It can often lead to the most prompt and economical means of resolving disputes, and even where complete relief is not obtained, it can serve to reduce the scope of litigation or possibly avoid it altogether. (See Rojo, supra, 52 Cal.3d at p. 86.) And where a dispute is unavoidably headed to court, the requirement that statutory administrative remedies first be exhausted affords the agency or entity implicated in the claim an opportunity to apply its expertise, ensure the development of a complete factual record, and assist or help focus the subsequent judicial review process. (Sierra Club, supra, 21 Cal.4th at p. 501.)

*1095Many California public entities like the City of Los Angeles here have established civil service systems that provide comprehensive internal remedies and protections for resolving employment-related grievances for the vast number of public employees across this state. Among the various amici curiae briefs we have received in this matter is one on behalf of 61 California cities, urging that the holding in this case will be of vital importance to public agencies throughout the state which, in the role of employers, routinely afford their employees internal administrative remedies for the investigation and resolution of discrimination, wrongful termination, and similar employment-related claims. The expressed concern is that a holding from this court—that plaintiff here was not required to exhaust his internal administrative remedies provided under the Los Angeles City Charter before filing a disability discrimination claim in superior court pursuant to the FEHA—will greatly impact the efficiency and effectiveness of those administrative remedies, as well as a public entity’s ability to seek to amicably resolve employment discrimination claims without resort to costly litigation, by authorizing employees to bypass those internal remedies and file actions directly in court without fair notice to the employer of the nature, or possibly even the existence of the employee’s claim, much less an opportunity to resolve it in a conciliatory and cost-effective fashion.

The Charter of the City of Los Angeles (city charter) requires employees who claim they have been wrongfully suspended, laid off or discharged to follow certain procedures in perfecting a discrimination claim against the city. Time limits are imposed for the making of demands for reinstatement or claims for compensation. Former section 112 1/2 of article IX of the city charter (now renumbered section 1017 of article X, but materially unchanged), the provision at issue herein, provided: “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.”

*1096In Moreno v. Cairns (1942) 20 Cal.2d 531 [127 P.2d 914], this court gave effect to the exhaustion requirement embodied in former city charter section 112 1/2 when we recognized that the requirement—that a city employee claiming he or she has been wrongfully and unlawfully “suspended, laid off or discharged” file a demand for reinstatement and/or a claim for compensation within a specified time period—is a valid precondition to maintaining a mandamus action in superior court for reinstatement or wages due. (Moreno, at pp. 534—535.) We further held that a “coerced resignation,” such as is alleged by plaintiff in this case, fell under the “unlawful discharge” language of former section 112 1/2. (Moreno, at pp. 535, 536.)

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.) As applicable here, the FEHA declares disability discrimination to be an unlawful employment practice in contravention of public policy, and establishes as a civil right a person’s freedom from employment discrimination based on disability. (Gov. Code, §§ 12920, 12921, 12940.)

The rule requiring exhaustion of administrative remedies was well settled at the time the Legislature enacted the Fair Employment Practices Act and, 20 years later, recodified its provisions in the FEHA. This court’s decision in Moreno v. Cairns, which recognized the exhaustion rule’s applicability under the very city charter provision here in issue, was likewise established law when the FEHA and its predecessor statute were enacted. Under settled principles of statutory construction we must presume that the Legislature, at the time it enacted the FEHA, was aware of the well-established exhaustion rule, as well as decisions of this court (e.g., Steen v. Board of Civil Service Commrs. (1945) 26 Cal.2d 716, 721 [160 P.2d 816]; Moreno v. Cairns, supra, 20 Cal.2d 531) and our intermediate appellate courts (e.g., Temple v. Horrall (1949) 92 Cal.App.2d 177, 179 [206 P.2d 909]; Tennant v. Civil Service Com. (1946) 77 Cal.App.2d 489, 497 [175 P.2d 568]) specifically invoking or applying it in this context. It is a fundamental rule of statutory construction that “[t]he Legislature ... is deemed to be aware of statutes and judicial decisions already in existence, and to have enacted or amended a statute in light thereof.” (People v. Harrison (1989) 48 Cal.3d 321, 329 [256 Cal.Rptr. 401, 768 P.2d 1078].)

The Legislature likewise may be presumed to have been aware, at the time it enacted the FEHA, of the thousands upon thousands of public employees across this state who fell within the protection of comprehensive remedial internal grievance procedures designed to resolve their employment disputes *1097in an amicable and expeditious fashion, to provide opportunities for conciliation and settlement, and, short of that, to draw upon the public agency employer’s expertise to narrow and focus the issues relating to the claim and thereby streamline, if not avoid altogether, litigation costly to both parties and burdensome to the courts. In State Personnel Bd., supra, 39 Cal.3d 422 [217 Cal.Rptr. 16, 703 P.2d 354], in the course of rejecting an argument that the Legislature intended the FEHA to apply only to employees of state agencies who were exempt from civil service protection, this court suggested “[i]t is inconceivable that the Legislature could have silently excluded 130,000 civil servants from its contemplation when it provided that ‘state’ employees would be covered by the Act.” (Id. at p. 429.)

Neither the FEHA nor its predecessor statute contains any language suggesting that, in the context of redress of public-employee grievance claims, the Legislature intended to abrogate the long-standing rule requiring exhaustion of internal administrative remedies before suit can be filed in court, and to instead permit public employees to bypass their employers’ internal remedies and grievance procedures by bringing an FEHA-based action directly in court in the first instance. Under settled rules of statutory construction, the Legislature’s failure to expressly provide for such an exception “is presumed to be intentional.” (Fierro v. State Bd. of Control (1987) 191 Cal.App.3d 735, 741 [236 Cal.Rptr. 516] [failure to expressly apply collateral source exception to limits on reimbursement in criminal restitution statute rendered exception inapplicable].)

Nor does the circumstance that the FEHA has its own separate exhaustion requirements support the majority’s conclusion that the Legislature intended to exempt public employees from the requirement that they first exhaust their public employers’ internal remedies before bringing suit in court. This court’s decision in State Personnel Bd., supra, 39 Cal.3d 422, does not hold otherwise—our decision in that case stands only as authority for the proposition that the Department and the State Personnel Board share concurrent jurisdiction over matters involving state employee discrimination claims (id. at p. 441), not that the Department’s FEHA-based jurisdiction preempts the jurisdiction of a state or local public agency over its employees’ employment discrimination claims.

Plaintiff relies on Government Code section 12993, subdivision (c) (section 12993(c)), an FEHA provision, as evidence that the Legislature intended to exempt public employees who bypass their employers’ internal grievance procedures and opt to file an FEHA-based action directly in superior court from the rule requiring exhaustion of administrative remedies. Section 12993(c) provides, in pertinent part, “[I]t is the intention of the Legislature to occupy the field of regulation of discrimination in employment and housing *1098encompassed by the provisions of this part, 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 . . . .”

The majority agrees with plaintiff that, “although the FEHA does not limit the application of other state statutes . . . , or constitutional provisions involving discrimination, [section 12993(c)] expressly preempts local governmental laws, regulations, and procedures that would affect the rights included in its provisions.” (Maj. opn., ante, at p. 1082.) I do not so read section 12993(c). As State Personnel Bd. teaches, the FEHA was enacted to supplement existing antidiscrimination remedies, not supplant them. Nor is there any compelling reason to conclude that requiring public employees to avail themselves of their internal administrative remedies before initiating costly and burdensome litigation in court would chill the rights and remedies available to them under the FEHA.

We have repeatedly recognized in many of this court’s decisions that the FEHA was enacted to expand, not to limit, employees’ rights to seek redress for employment discrimination. (See, e.g., Rojo, supra, 52 Cal.3d at p. 82; State Personnel Bd., supra, 39 Cal.3d at p. 431.) And we have, in many past cases, acknowledged the value and importance of an employer’s internal administrative procedures and remedies for redressing employment-related grievances.

In Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 [131 Cal.Rptr. 90, 551 P.2d 410] (Westlake), this court held that a doctor must exhaust the internal remedies afforded by a private hospital before filing an action in court challenging the propriety of its decision to deny or withdraw hospital privileges. Observing that the plaintiff in Westlake was seeking only money damages, and not reinstatement, we explained, “Nevertheless, the policy considerations which support the imposition of a general exhaustion requirement remain compelling in this context. In the first place, even if a plaintiff no longer wishes to be either reinstated or admitted to the organization, an exhaustion of remedies requirement serves the salutary function of eliminating or mitigating damages. If an organization is given the opportunity quickly to determine through the operation of its internal procedures that it has committed error, it may be able to minimize, and sometimes eliminate, any monetary injury to the plaintiff by immediately reversing its initial decision and affording the aggrieved party all membership rights; an individual should not be permitted to increase damages by foregoing available internal remedies. (See Summers, Legal Limitations on Union Discipline (1951) 64 Harv.L.Rev. 1049, 1089.) [¶] Moreover, by insisting upon exhaustion even in these circumstances, courts accord recognition to the ‘expertise’ of the organization’s quasi-judicial tribunal, permitting it to adjudicate the *1099merits of the plaintiff’s claim in the first instance. (See id.) Finally, even if the absence of an internal damage remedy makes ultimate resort to the courts inevitable (see Developments in the Law-Private Associations (1963) 76 Harv. L.Rev. 983, 1075), the prior administrative proceeding will still promote judicial efficiency by unearthing the relevant evidence and by providing a record which the court may review. Accordingly, we conclude that the exhaustion of remedies doctrine fully applies to actions seeking damages for an allegedly wrongful termination of or exclusion from membership in a private association. [Citation.].” (Id. at pp. 476-477, fn. omitted.)

Subsequently, in Rojo, we explained that, “[t]he ‘context’ to which West-lake 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.] HI 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.’ . . . [f] 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, italics added.)

We concluded in Rojo that, “By expressly disclaiming a purpose to repeal other applicable state laws ([Gov. Code,] § 12993, subd. (a)), we believe the Legislature has manifested an intent to amplify, not abrogate, an employee’s common law remedies for injuries relating to employment discrimination. Had the Legislature intended otherwise, it plainly knew how to do so. [Citations].” (Rojo, supra, 52 Cal.3d at p. 75.) We farther acknowledged the ambiguity of section 12993(c), the provision relied on by plaintiff and the majority here for the proposition that in enacting the FEHA, the Legislature intended to preempt the requirement that a public employee exhaust the public entity’s internal grievance procedures. Rojo explains, “As written, [section 12993,] subdivision (c) is ambiguous. First, the phrase ‘occupy the field’ may convey displacement either of all other law, without limitation [citations], or, alternatively, of only local law by a higher law [citations]. [][] Second, the stated legislative intent to occupy the field ‘exclusive of all other laws banning discrimination ... by any city, city and county [etc.]’ (§ 12993(c), italics added) can be read to mean ‘not including’ local laws (see, e.g., Webster’s New Internat. Dict. (2d ed. 1935) p. 890, col. 3), thereby removing them from the preemptive effect of the statute, or, as the parties assume, ‘to the exclusion of’ local laws, thereby preempting such laws. *1100Further, ‘laws banning discrimination ... by any city [etc.]’ (italics added) can mean laws that prohibit discrimination on the part of any city, etc., or, as the parties assume, laws that are enacted by any city or other local entity.” (Rojo, supra, 52 Cal.3d at pp. 76-77.)

The majority chooses to read the ambiguous language of section 12993(c) as conclusively preemptive: “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.” (Maj. opn., ante, at p. 1082, italics added.) Therein lies the rub. I part company with the majority when it concludes the FEHA administrative remedy must be deemed an exclusive one because, to conclude otherwise, i.e., to give force and effect to the internal exhaustion requirements under the city charter, would necessarily detrimentally impact plaintiff’s rights under the FEHA. Not so.

That the Legislature sought to preserve for public employees several avenues of redress to remedy employment discrimination claims sheds no light on the order in which the Legislature envisioned the employee would pursue available administrative remedies. There is no inherent inconsistency between, on the one hand, the circumstance that a municipal employee has the right to file and pursue an internal employment discrimination grievance with his or her employer, an FEHA-based claim with the Department, and, if necessary, a civil action in court, and on the other hand, a rule requiring the employee to exhaust his or her internal administrative remedy as a prerequisite to filing suit in court. Once again, because the rule requiring exhaustion of internal administrative remedies as a condition to filing a court action was well established when the Legislature enacted the FEHA, the failure of the Legislature to create an express exception to that long-standing rule is evidence it did not intend any such exception.

I agree with the observation of the Court of Appeal below that “[a] city employee can pursue the administrative remedies provided by FEHA and the city charter simultaneously. The remedies do not conflict with each other, and pursuit of one would not undermine or impair pursuit of the other. Each requires filing a claim or claims with an administrative agency, and the pursuit of both is not an undue burden, particularly when either remedy could provide complete or partial relief, obviate the need for litigation or reduce the scope of litigation, develop a more complete factual record, and draw upon agency expertise. In these circumstances, the pursuit of two administrative remedies, each of which independently offers advantages, increases the potential for judicial economy and other benefits.” I fail to see why a city employee would necessarily “tread onto a ‘procedural minefield’ if a claim *1101was filed with the Department at the same time remedies were pursued under the City Charter.” (Maj. opn., ante, at p. 1088.)1

The majority relies on the holdings in Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1284 [261 Cal.Rptr. 204] (Watson), and Ruiz v. Department of Corrections (2000) 77 Cal.App.4th 891 [92 Cal.Rptr.2d 139] (Ruiz), in support of its conclusion that plaintiff could file his FEHA-based action in superior court without first exhausting his internal remedies under the city charter’s employee grievance procedures. I would not endorse the holdings in Watson and Ruiz, but would instead disapprove those decisions, as they both rest on a flawed reading of this court’s holding in State Personnel Bd., supra, 39 Cal.3d 422.

The Watson court held that plaintiff, a state civil service employee, “had a choice between her civil service remedies and those provided by [FEHA],” citing this court’s decision in State Personnel Bd., with little more, as authority for that conclusion. (Watson, supra, 212 Cal.App.3d at p. 1284.) The Ruiz court took a somewhat more reserved position, reading our decision in State Personnel Bd. as authority only for the proposition that the Department and the State Personnel Board shared concurrent jurisdiction over matters involving state employee discrimination claims. (Ruiz, supra, 77 Cal.App.4th at p. 897.) The Ruiz court nevertheless reasoned that this court’s “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.” (Id. at p. 898.)

The majority suggests that, “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.)” (Maj. opn., ante, at p. 1087.) I agree that differing circumstances *1102may prompt a public employee desirous of pressing an employment discrimination claim to choose which administrative or judicial remedy or remedies to pursue. He or she may elect to pursue the internal remedies offered by the employer, or file an FEHA-based discrimination claim with the Department by complying with the FEHA’s separate administrative remedies, or pursue both administrative avenues of redress, and/or bring a civil action in court. There is no legal impediment to an employee’s ultimately pursuing multiple administrative remedies where available, or both administrative and judicial remedies, either sequentially or simultaneously. (See Rojo, supra, 52 Cal.3d at p. 88.)

There is, however, one important caveat—the long-standing rule that one cannot pursue a judicial remedy unless he or she has first exhausted internal administrative remedies. And for the many practical reasons noted above,2 whether the employee desires to press a common law employment discrimination claim or an FEHA-based discrimination claim, or both, in court—the administrative remedy that must first be exhausted in every instance before litigation may be commenced is the internal remedy provided by the public-entity employer on behalf of, and for the benefit of, its employees.3 The majority’s conclusion to the contrary will only thwart, not serve, the Legislature’s underlying purpose and intent in enacting the FEHA. As we have recognized, “By expressly disclaiming a purpose to repeal other applicable state laws ([Gov. Code,] § 12993, subd. (a)), we believe the Legislature [in enacting the FEHA] has manifested an intent to amplify, not abrogate, an employee’s common law remedies for injuries relating to employment discrimination.” (Rojo, supra, 52 Cal.3d at p. 75, italics added.)

Much emphasis has been placed on the circumstance that the Department has issued a right-to-sue letter to plaintiff in this case. But plaintiff did not ascend to a fog-shrouded mountaintop and return with a stone tablet commanding him to file suit in this matter. As we explained in Rojo, supra, 52 Cal.3d at pages 83-84, compliance with the exhaustion requirement “is not *1103an impediment to civil suit, in that the Department’s practice evidently is to issue a right-to-sue letter ([Gov. Code,] § 12965) at the employee’s request as a matter of course (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379 at pp. 1401-1402 [241 Cal.Rptr. 67, 743 P.2d 1323]; see, e.g., Baker v. Children’s Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1060 [257 Cal.Rptr. 768]; Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal.App.3d 1394, 1399 [245 Cal.Rptr. 606]).”4

In State Personnel Bd., we “stressed the distinction between an employee’s assertion of a private right before an administrative agency and the [Department’s] acting as a public prosecutor asserting a public right.” (Johnson v. City of Loma Linda, supra, 24 Cal.4th at p. 73 (Johnson).) We explained in State Personnel Bd. that, “an employee complaining before the [State Personnel] Board is asserting a private right, while the [Department] is a ‘public prosecutor . . . testing] a public right.’ [Citation.] The employee’s choice to assert the former should not bar litigation of the latter right.” (State Personnel Bd., supra, 39 Cal.3d at p. 444.) Thus, we determined in State Personnel Bd. that “a decision against an individual in an administrative proceeding does not preclude a public agency, when acting as a public prosecutor, from asserting a public right.” (Johnson, supra, 24 Cal.4th at p. 74.)

In light of the teachings of Rojo, State Personnel Bd., and Johnson, we might reasonably characterize the Department’s issuance of a right-to-sue letter as reflective of the Department’s determination to take no action or pass on the opportunity to pursue the public-right aspect of an employee’s claim, leaving the employee to his or her private-right remedies, including suit in court. Our prior cases explain that the Department, at most, shares concurrent jurisdiction with public-entity employers, which are constitutionally vested with decision making authority over their employees’ labor-related grievances in the first instance. I would treat the Department’s issuance of a right-to-sue letter in this case as an indication that the Department has determined to take no further action in the matter, relegating plaintiff to his private right remedies, including a court action. That said, the Department has no authority to interfere with or undercut the long-standing jurisdictional rule (Abelleira, supra, 17 Cal.2d at p. 293) requiring plaintiff to first exhaust his internal administrative remedies available to him under the city charter as a precondition to filing a disability discrimination action against the city as employer in superior court.

*1104The majority’s holding exempting all FEHA plaintiffs from their obligation to exhaust available internal administrative remedies before filing suit is also a marked departure from the spirit if not the letter of our recent holding in Johnson, supra, 24 Cal.4th 61. The plaintiff in Johnson was an Assistant City Manager of the City of Loma Linda who, after being laid off, filed a grievance claim with the city’s personnel board, alleging he had been dismissed for complaining about the sexual harassment of a coworker. The board rejected the claim, concluding he had been laid off for valid economic reasons. The plaintiff appealed to the city council, which upheld the personnel board’s decision. Rather than file a mandamus action in superior court to obtain review of the city council’s decision, the plaintiff filed a claim with the Department. Two years later, after obtaining a right-to-sue letter from the Department, the plaintiff filed an FEHA-based action in superior court joined with a petition for writ of mandate (Code Civ. Proc. § 1094.5) challenging the actions of the local personnel board and the city council. The plaintiff sought reinstatement, backpay, benefits, and compensatory and punitive damages. The trial court granted summary judgment for the city on the ground of laches, and the Court of Appeal affirmed. (Johnson, supra, 24 Cal.4th at pp. 65-67.)

We unanimously affirmed the judgment of the Court of Appeal in Johnson, holding that, “when ... a public employee pursues administrative civil service remedies, receives an adverse finding, and fails to have the finding set aside through judicial review procedures, the adverse finding is binding on discrimination claims under the FEHA.” (Johnson, supra, 24 Cal.4th at p. 76.) We reasoned that to permit the plaintiff to abandon the internal grievance process without exhausting available judicial remedies would “undermine the efficacy of such proceedings, rendering them in many cases little more than rehearsals for litigation.” (Id. at p. 72.)

Johnson therefore stands for the proposition that where a public employee invokes his or her employer’s internal grievance procedures, the employee must pursue and perfect that process, and timely seek judicial mandamus review from any adverse decision, as a precondition to filing an FEHA-based action in superior court. Johnson’s exhaustion of judicial remedies rule serves to preserve the integrity of the employer’s internal grievance procedures.

A similar holding here respecting the exhaustion of available internal administrative remedies would serve the same purpose and goal. Instead, under the majority’s holding today, the spirit, if not the letter of our decision in Johnson has been gutted. Given Johnson’s requirement that an employee pursue and perfect the internal grievance process through the final stage of judicial mandamus review as a precondition to filing an FEHA-based discrimination action in superior court, and given that, under the majority’s *1105holding in this case, a similarly situated employee will be free to bypass the internal administrative grievance procedure altogether and directly file suit after requesting and receiving a right-to-sue letter from the Department, few if any employees will have the financial incentive, or the tenacity, to choose the route of conciliation, possible settlement, or mitigation of damages over the shortcut straight to court.

Last, the majority’s holding today exempting all FEHA plaintiffs from their obligation to exhaust internal administrative remedies before going to court is patently at odds with our unanimous decision filed just one week ago in State Department of Health Services v. Superior Court (2003) 31 Cal.4th 1026 [6 Cal.Rptr.3d 441, 79 P.3d 556] (State Department of Health Services). That case involved the provisions of the FEHA prohibiting sexual harassment in the workplace. The issue in State Department of Health Services was whether, under the FEHA, an employer is strictly liable for hostile environment sexual harassment by a supervisor, and whether the damages a plaintiff may recover from the employer in such a case include damages that the plaintiff could have avoided by reporting incidents of harassment to the employer. We held that an employer is strictly liable under the FEHA for sexual harassment by a supervisor. (Id. at p. 1034.) We further concluded that, “the avoidable consequences doctrine applies to damage claims under the FEHA, and . . . under that doctrine a plaintiff’s recoverable damages do not include those damages that the plaintiff could have avoided with reasonable effort and without undue risk, expense, or humiliation.” (Ibid.)

We explained in State Department of Health Services that, “The avoidable consequences doctrine is well established and broadly applied, and nothing in the FEHA’s language and structure indicates that the Legislature intended to abrogate this fundamental legal principle. On the contrary, failure to apply the avoidable consequences doctrine to FEHA sexual harassment claims could undermine a basic goal of the FEHA—to make employers the first line of defense against sexual harassment in the workplace. A rule making employers liable even for those damages that an employee could have avoided with reasonable effort and without undue risk, expense, or humiliation would significantly weaken the incentive for employers to establish effective workplace remedies against sexual harassment.” (State Department of Health Services, supra, 31 Cal.4th at p. 1034.)

Similar to the purpose served by the doctrine of avoidable consequences, the rule requiring exhaustion of internal administrative remedies makes employers, and in the case of public entity employers, their civil service commissions, the first line of defense against employment discrimination practices in the workplace. As explained above, the exhaustion of internal remedies requirement gives the administrative body with jurisdiction over a *1106claim an opportunity to redress the claimed wrong, or possibly mitigate the claimant’s damages, short of costly litigation in the courts. (Sierra Club v. San Joaquin Local Agency Formation Com., supra, 21 Cal.4th at p. 501.) It oftentimes will lead to the most prompt and economical means of resolving disputes, and even where complete relief is not obtained, it can serve to reduce the scope of litigation or possibly avoid it altogether. (Rojo, supra, 52 Cal.3d at p. 86.) And where litigation proves unavoidable, the exhaustion rule affords the agency or entity implicated in the claim an opportunity to apply its expertise, ensure the development of a complete factual record, and assist or help focus the subsequent judicial review process. (Sierra Club, supra, 21 Cal.4th at p. 501.)

To my mind, the analogy between the purposes served by the doctrine of avoidable consequences and the rule requiring exhaustion of internal administrative remedies is striking, and the disparity between the holdings reached by a majority of this court in State Department of Health Services and this case—decisions filed just one week apart—equally as baffling. Had plaintiff here timely and promptly pursued the city’s internal grievance procedures, the result could have been drastically different for both parties. The city’s Board of Civil Service Commissioners might have found the city responsible for plaintiff’s supervisor’s actions and directed the city to reinstate plaintiff with backpay. Although we are not here in a position to pass judgment on the merits of plaintiff’s claim, the point is simply that had plaintiff pursued his internal remedy with the city as required by law until today, both plaintiff and the city might have settled this matter amicably and avoided costly and burdensome litigation altogether. Instead, under the majority’s holding, the road to possible conciliation, amicable settlement, or mitigation of damages will first have to pass through the courthouse.

For all of these reasons, I respectfully dissent.

Brown, L, concurred.

On December 23, 2003, the opinion was modified to read as printed above.

The Court of Appeal forthrightly acknowledged that the pursuit of separate administrative remedies could theoretically result in inconsistent administrative findings or adjudications. The majority finds faults with that conclusion, suggesting the Court of Appeal “refused ... 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.” (Maj. opn., ante, at p. 1088.) Does our majority do any better when it likewise concludes, “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”? (Maj. opn., ante, at p. 1092.) This case presents a complex question of administrative law. There are undoubtedly conflicts and questions that could arise where multiple administrative remedies are simultaneously pursued. Both the majority here, and the Court of Appeal below are correct in concluding that such speculative matters are most appropriately left for another day, when the facts of an actual case in controversy present them for resolution.

“In cases appropriate for administrative resolution, the exhaustion requirement serves the important policy interests embodied in the act of resolving disputes and eliminating unlawful employment practices by conciliation (see Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123 [257 Cal.Rptr. 665]), as well as the salutory goals of easing the burden on the court system, maximizing the use of administrative agency expertise and capability to order and monitor corrective measures, and providing a more economical and less formal means of resolving the dispute (see McKee v. Bell-Carter Olive Co. (1986) 186 Cal.App.3d 1230, 1244—1245 [231 Cal.Rptr. 304]). By contrast, in those cases appropriate for judicial resolution, as where the facts support a claim for compensatory or punitive damages, the exhaustion requirement may nevertheless lead to settlement and serve to eliminate the unlawful practice or mitigate damages . . . .” (Rojo, supra, 52 Cal.3d at p. 83.)

Where, as here, the employee seeks to pursue an FEHA-based action in superior court, then of course the separate administrative remedy provided under the FEHA must be exhausted as well, pursuant to the provisions of the FEHA.

In Swartzendruber v. City of San Diego (1992) 3 Cal.App.4th 896, at page 910 [5 Cal.Rptr.2d 64], the Court of Appeal concluded that the FEHA process of obtaining a right-to-sue letter from the Department was “an alternative administrative avenue to the City’s internal review proceedings and an appeal to the [San Diego Civil Service] Commission.” In a one-paragraph discussion, we wasted little time in disapproving that decision. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 72 [99 Cal.Rptr.2d 316, 5 P.3d 874].)