California’s Fair Employment and Housing Act (“FEHA”) provides procedures and remedies to deter and redress unlawful employment practices.  Under FEHA, California’s Department of Fair Employment and Housing (“DFEH”) investigates potential discrimination claims.[1]  Upon receiving a complaint, the DFEH may decide to pursue the matter itself before California’s Fair Employment and Housing Commission (“FEHC”).[2]  Alternatively, if it decides not to prosecute the claim, the DFEH must give the employee notice of his or her right to bring a civil action (i.e., a Right to Sue Letter).[3]  Thereafter, the employee has one year to initiate a lawsuit on the subject of the DFEH complaint upon receipt of a Right to Sue Letter from the DFEH.[4]

An employee may file a verified complaint with the DFEH that states the name and address of the person/employer/organization that has committed the alleged wrongdoing, the particulars of the wrongdoing, and any other information the DFEH requires.[5]  It is critical for the employee to identify with specificity the discrimination alleged and the facts supporting it so that a proper investigation of the alleged discrimination can be conducted by the DFEH.[6]

The employee’s complaint must be filed within one year of the last alleged unlawful action.[7]  More specifically, the statutory period runs from the date of the alleged wrongful termination, not from an earlier date on which the employee learned he or she would be terminated.[8]  If the employee did not discover the alleged wrongful acts until after the one year period, the statutory period can be extended for a time not to exceed 90 days following expiration of that year.[9]

“The scope of the written administrative charge defines the scope of the subsequent civil action. Allegations in the civil complaint that fall outside the scope of the administrative charge are barred for failure to exhaust.”[10]  If an employee (the prospective plaintiff) fails to include any disability claims in the original DFEH Complaint, potential new claims may not survive because an amended DFEH complaint cannot relate back in certain circumstances.  Mere acceptance of an amendment to a DFEH complaint is not conclusive that the amendment relates back.  In Rodriguez v. Airborne Express, the Ninth Circuit held that a plaintiff’s disability discrimination amendment to a DFEH complaint did not relate back to an earlier complaint that only mentioned racial discrimination.[11]

In Rodriguez, the plaintiff submitted a DFEH complaint asserting only discrimination based on race, although he believed at the time that his termination had been based on disability discrimination.[12]  Approximately one year after the DFEH issued a Right to Sue Letter on the matter (and 23 months after the plaintiff signed the DFEH complaint), the plaintiff sent a letter to the DFEH seeking to amend the original complaint to include a charge of mental disability discrimination.  The plaintiff thereafter filed suit solely on his disability discrimination claims and not any racial discrimination.  Upon challenge, the Ninth Circuit held that although the amended complaint was accepted by the DFEH, the plaintiff failed to exhaust his administrative remedies by law since disability discrimination claims did not relate back to any allegations within the initial complaint, even when liberally construed.  Specifically, the Ninth Circuit ruled that the charges of discrimination based on race “would not reasonably trigger an investigation into discrimination on the ground of disability.  The two claims involve totally different kinds of allegedly improper conduct, and investigation into one claim would not likely lead to investigation of the other.”[13]  The Ninth Circuit held that the relation-back doctrine is available in appropriate circumstances to render timely an otherwise untimely amendment but only based on the same operative facts.[14]  As the Ninth Circuit points out, the factual allegations of the original complaint “must be able to bear the weight of the new theory added by amendment” and the court gives no weight to the fact that the administrative agency accepts the amended charge.[15]

Thus, it is imperative for employers when they review any amendments to a DFEH complaint to determine if the new charges can relate back, are based on the same operative facts, and could bear the weight of a new legal theory.  If the employee has failed to abide by the Ninth Circuit’s guidance in Rodriguez, the employer should move to dismiss any new claims forthwith.  Failure to do so by the employer may result in a missed opportunity for it to remove additional claims.

[1] See, California Government Code section 12930(f).

[2] California Government Code section 12930(h).

[3] California Government Code section 12965(b).

[4] California Government Code section 12965(d)(2).

[5] California Government Code section 12960.

[6] California Government Code section 12960; Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614.

[7] California Government Code section 12960.

[8] Romano v. Rockwell International, Inc. (1996) Cal.4th 479.

[9] California Government Code section 12960.

[10] Rodriguez v. Airborne Express, 265 F.3d 890, 897 (9th Cir. 2001).

[11] Rodriguez, supra, 265 F.3d 890, 898.

[12] Id. at 894-895.

[13] Id. at 897.

[14] Rodriguez at 898-899.

[15] Id. at 898-899.