Exhibit,Appendix: Department of Fair Employment and Housing vs. American Pacifi...

On September 09, 2013 a Exhibit,Appendix was filed involving a dispute between Department Of Fair Employment And Housing, and American Pacific Corporation, Does 1-10, for (Civil Rights/Discrimination) in the District Court of Sacramento County.

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1 JON M. ICHINAGA (#137290) C-1- ;
Chief Counsel
2 NELSON CHAN (#109272)
Associate Chief (Ilounsel
3 ROYA S. LADAN (#287161)
Staff Counsel
4 DEPARTMENT OF FAIR EMPLOYMENT
AND HOUSING PACR
5 2218 Kausen Drive, Suite 100
Elk Grove, CA 95758
6 Telephone: (916)478-7251
Fax: (888)382-5293
7
Attorneys for the DFEH
8 (Fee Exempt, Gov. Code, § 6103)
9

10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 IN AND FOR THE COUNTY OF SACRAMENTO
12 DEPARTMENT OF FAIR EMPLOYMENT Case No.: 34-2013-00151153
13 AND HOUSING, an agency of the State of
California,
14 PLAINTIFF DEPARTMENT OF FAIR
EMPLOYMENT AND HOUSING'S
15 Plaintiff, APPENDIX OF FOREIGN
AUTHORITIES IN SUPPORT OF
16 PLAINTIFF'S MOTION FOR
vs. SUMMARY ADJUDICATION
17
18 AMERICAN PACIFIC CORPORATION,
a Nevada Corporation, dba, AMPAC FINE
19 CHEMICALS; and Does ONE through TEN, Hearing Date: July 24, 2015
Inclusive, Time: 2:00 p.m.
20 Dept: 53
Defendants Trial Date: August 24, 2015
21
22 NICK LOZANO,
23 Real Party in Interest.

24
Plaintiff Department of Fair Employment and Housing (DFEH), in support of its Motion
25
for Summary Adjudication respectfully submits the following appendix of foreign authorities
26
pursuant to California Rules of Courts 3.1113, subdivision (i) and 3.1110, subdivision (f).
27

COURT PAPER
Stoto of Californio
Std. 113 Rov. 3-95
FE&H Automatod
Dept. Fair Empl. & Hous. v. American Pacific Corp., et. al. (Lozano)
Appendix of Foreign Authorities in Support of DFEH's Motion for Summary Adjudication
1 TABLE OF CONTENTS
2
Foreign Authority Exhibit
3
1. 42 U.S.C.A. § 2000e-2 Exhibit A
4
5 2. 42 U.S.C.A. § 2000e-16 Exhibit B

6 3. Cal. Code Regs., tit. 8, §§ 3364-3367 Exhibit C

7 4. Assem. Bill No. 887 (2011-2012 Reg. Sess.) Exhibit D
8
5. Rodriguez v. Airborne Express (9th Cir. 2001) 265 F.3d 890 Exhibit E
9
6. Montero v. AGCO Corp. (9th Cir. 1999) 192 F.3d 856 Exhibit F
10
7. Smith V. First Union National Bank (4th Cir. 2000) 202 F.3d 234 Exhibit G
11
12 8. Wyatt V. Adair (Ala. 1926) 215 Ala. 363 Exhibit H

13 9. Norfolk & W. Ry. Co. v. Stone (Va. 1911) 111 Va. 730 Exhibit I

14 10. Complainant v. John M. McHugh, Secretary, Department of the Army, Exhibit J
15 EEOC DOC 0120133395 (April 1, 2015) 2015 WL 1607756
16
11. Dept. Fair Empl. & Hous. v. Lyddan Law Group, LLP (Cal.F.E.H.C, Exhibit K
17
OcL 19, 2010, No. 10-04-P) 2010 WL 4901732
18
19 12. Dept. Fair Empl. & Hous. v. Acosta Tacos (Cal.F.E.H.C, June 19, 2009, Exhibit L

20 No. 09-03) 2009 WL 2595487

21
22
23
24
25
26
27

®
COURT PAPER
Stoto of California -2-
Std. 113 Rov. 3-95
FE&H Automatod
Dept. Fair Empl. & Hous. v. American Pacific Corp., et. al. (Lozano)
Appendix of Foreign Authorities in Support of DFEH's Motion for Summary Adjudication
3
1 DATED: May 11, 2015 DEPARTMENT OF FAIR EMPLOYMENT
AND HOUSING
2
JON M. ICHINAGA
3 Chief Counsel
4 NELSON CHAN
Associate Chief Counsel
5
ROYA S. LADAN
6 Staff Counsel
7
8
By:
9 Roya Ladan
Attorneys for the DFEH
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

COURT PAPER
Slato of Calirornia
Std. 113 Rov. 3-95
FE&H Automatod
Dept. Fair Empl. & Hous. v. American Pacific Corp., et. al. (Lozano)
Appendix of Foreign Authorities in Support of DFEH's Motion for Summary Adjudication
The Non-California Authorities within this document have been
lodged and will not be part of the scanned image.
•

EXHIBIT A
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5/8/2015 U.S.C. Title 42 - THE PUBLIC HEALTH AND WEU

42 U.S.C.
United Stales Code, 2010 Edition
, Title 42 - THE PUBLIC HEALTH AND WELFARE
' CHAPTER 21 - CIVIL RIGHTS
SUBCHAPTER VI - EQUAL EMPLOYMENT OPPORTUNITIES
Sec. 2000e-2 - Unlawful employment practices
From the U.S. Government Printing Office, www.gpo.gov

§2000e-2. Unlawful employment practices
(a) Employer practices
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against
any individual vvith respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any v^'ay which
would deprive or tend to deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such individual's race, color, religion, sex,
or national origin.
(b) Employment agency practices
It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for
employment, or otherwise to discriminate against, any individual because ofhis race, color, religion,
sex, or national origin, or to classify or refer for employment any individual on the basis ofhis race,
color, religion, sex, or national origin.
(c) Labor organization practices
It shall be an unlawful employment practice for a labor organization—
(1) to exclude or to expel from its membership, or otherwise to discriminate against, any
individual because ofhis race, color, religion, sex, or national origin;
(2) to limit, segregate, or classify its membership or applicants for membership, or to classify or
fail or refuse to refer for employment any individual, in any way which would deprive or tend to
deprive any individual of employment opportunities, or would limit such employment
opportunities or otherwise adversely affect his status as an employee or as an applicant for
employment, because of such individual's race, color, religion, sex, or national origin; or
(3) (o cause or attempt to cause an employer to discriminate against an individual in violation of
this section.
(d) Training programs
ll shall be an unlawful employment practice for any employer, labor organization, or joint labor-
management committee controlling apprenticeship or other training or retraining, including on-the-
job training programs to discriminate against any individual because ofhis race, color, religion, sex,
or national origin in admission to, or employment in, any program established to provide
apprenticeship or other training.
(e) Businesses or enterprises with personnel qualified on basis of religion, sex, or national
origin; educational institutions with personnel of particular religion
Notvvithslanding any other provision of this subchapter, (1) it shall not be an unlawful
employment practice for an employer to hire and employ employees, for an employment agency to
classify, or refer for employment any individual, for a labor organization to classify its membership
or to classify or refer for eiTiployment any individual, or for an employer, labor organization, or joint
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labor-management committee controlling apprenticeship or other training or retraining programs to
admit or employ any individual in any such program, on the basis ofhis religion, sex, or national
origin in those certain instances where religion, sex, or national origin is a bona fide occupational
qualification reasonably necessary to the normal operation of that particular business or enterprise,
and (2) it shall not be an unlawful employment practice for a school, college, university, or other
educational institution or institution of learning to hire and employ employees of a particular religion
if such school, college, imiversity, or other educational institution or institution of learning is, in
whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by
a particular religious corporation, association, or society, or if the curriculum of such school, college,
university, or other educational institution or institution of learning is directed toward the
propagation ofa particular religion.
(1) Members of Communist Party or Communist-action or Communist-front organizations
As used in this subchapter, the phrase "unlawful employment practice" shall not be deemed to
include any action or measure taken by an employer, labor organization, joint labor-management
committee, or employment agency with respect to an individual who is a member of the Communist
Parly of the United Slates or of any other organization required to register as a Communist-action or
Communist-front organization by final order of the Subversive Activities Control .Board pursuant to
the Subversive Activities Control Act of 1950 [50 U.S.C. 781 et seq.].
(g) Nsitional security
Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment
practice for an employer to fail or refuse to hire and employ any individual for any position, for an
employer lo discharge any individual from any position, or for an employment agency to fail or
refuse to refer any individual for employment in any position, or for a labor organization to fail or
refuse to refer any individual for employment in any position, if—
(1) the occupancy of such position, or access to the premises in or upon which any part ofthe
duties of such position is performed or is to be performed, is subject to any requirement imposed
in the interest of the national security of the United States under any security program in effect
pursuant to or administered under any statute of the United States or any Executive order ofthe
President; and
(2) such individual has not fulfdled or has ceased to fulfill that requirement.
(h) Seniority or merit system; quantity or quality of production; nbility tests; compensation
based on sex and authorized by minimum wage provisions
Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment
practice for an employer to apply different standards of compensation, or different terms, conditions,
or privileges of employment pursuant to a bona fide seniorit}' or merit system, or a system which
measures earnings by quantity or quality of production or to employees who work in different
locations, provided that such differences are not the result of an intention to discriminate because of
race, color, religion, sex, or national origin, nor shall it be an unlawful employment practice for an
employer to give and to act upon the results of any professionally developed ability test provided that
such test, ils administration or action upon the results is not designed, intended or used to
discriminate because of race, color, religion, sex or national origin. It shall not be an unlawful
employment practice under this subchapter for any employer to differentiate upon the basis of sex in
determining the amount ofthe wages or compensation paid or to be paid to employees of such
employer if such differentiation is authorized by the provisions of section 206(d) of title 29.
(i) Businesses or enterprises extending preferential treatment to Indians
Nothing contained in this subchapter shall apply to any business or enterprise on or near an Indian
reservation with respect to any publicly amiounced employment practice of such business or
enterprise under which a preferential treatment is given to any individual because he is an Indian
living on or near a reservation.
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(j) Preferential treatment not to be granted on account of existing number or percentage
imbalance
Nothing contained in this subchapter shall be interpreted to require any employer, employment
agency, labor organization, or joint labor-management committee subject to this subchapter to grant
preferential treatment to any individual or to any group because ofthe race, color, religion, sex, or
national origin of such individual or group on account of an imbalance which may exist with respect
to lhe total number or percentage of persons of any race, color, religion, sex, or national origin
employed by any employer, referred or classified for employment by any employment agency or
labor organization, admitted to membership or classified by any labor organization, or admitted to, or
employed in, any apprenticeship or other training program, in comparison with the total number or
percentage of persons of such race, color, religion, sex, or national origin in any community, State,
section, or other area, or in the available work force in any community, State, section, or other area.
(k) Burden of proof in disparate impact cases
(1) (A) An unlawful employment practice based on disparate impact is established under this
subchapter only if—
(i) a complaining party demonstrates that a respondent uses a particular employment practice
that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the
respondent fails to demonstrate that the challenged practice is job related for the position in
question and consistent with business necessity; or
(ii) the complaining party makes the demonstration described in subparagraph (C) with respect
to an alternative employment practice and the respondent refuses to adopt such alternative
employment practice.

(B) (i) With respect to demonstrating that a particular employment practice causes a disparate
impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each
particular challenged employment practice causes a disparate impact, except that ifthe complaining
party can demonstrate to the court that the elements of a respondent's decisionmaking process are not
capable of separation for analysis, the decisionmaking process may be analyzed as one employinent
practice.
(ii) If the respondent demonstrates that a specific employment practice does not cause the
disparate impact, the respondent shall not be required to demonstrate that such practice is required by
business necessity.
(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it
, existed on June 4, 1989, with respect to the concept of "alternative employment practice".
(2) A demonstration that an employment practice is required by business necessity may not be
used as a defense against a claim of intentional discrimination under this subchapter.
(3) Notwithstanding any other provision of this subchapter, a rule barring the employment of an
individual who currently and knowingly uses or possesses a controlled substance, as defined in
schedules I and II of section 102(6) ofthe Controlled Substances Act (21 U.S.C. 802(6)), other than
the use or possession ofa drug taken under the supervision ofa licensed health care professional, or
any other use or possession authorized by the Controlled Substances Act [21 U.S.C. 801 et seq.] or
any other provision of Federal law, shall be considered an unlawful employment practice under this
subchapter only if such rule is adopled or applied with an intent to discriminate because of race,
color, religion, sex, or national origin.
(/) Prohibition of discriminatory use of test scores
It shall be an unlawful employment practice for a respondent, in comiection with the selection or
referral of applicants or candidates for employment or promotion, to adjust the scores of, use
difforent cutoff scores for, or otherwise alter the results of, employment related tests on the basis of
race, color, religion, sex, or national origin.

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5/8/2015 ^ U.S.C.Ti,,e42-THEPUBUCHEALTHANDWEL^

(m) Impermissible consideration of race, color, religion, sex, or national origin in employment
practices
Except as otherwise provided in this subchapter, an unlawful employment practice is established
when the complaining party demonstrates that race, color, religion, sex, or national origin was a
motivating factor for any employment practice, even though other factors also motivated the practice.
(n) Resolution of challenges to employment practices implementing litigated or consent
judgments or orders
(1) (A) Notwithstanding any other provision of law, and except as provided in paragraph (2), an
employment practice that implements and is within the scope ofa litigated or consent judgment or
order that resolves a claim of employment discrimination under the Constitution or Federal civil
rights laws may not be challenged under the circumstances described in subparagraph (B).
(B) A practice described in subparagraph (A) may not be challenged in a claim under the
Constitution or Federal civil rights laws—
(i) by a person who, prior to the entry ofthe judgment or order described in subparagraph (A),
had—
(I) actual notice ofthe proposed judgment or order sufficient to apprise such person that such
judgment or order might adversely affect the interests and legal rights of such person and that an
opportunity was available to present objections to such judgmeni or order by a future date
certain; and
(II) a reasonable opportunity to present objections to such judgment or order; or

(ii) by a person whose interests were adequately represented by another person who had
previously challenged the judgment or order on the same legal grounds and with a similar factual
situation, unless there has been an intervening change in law or fact.

(2) Nothing in this subsection shall be construed to—
(A) alter the standards for intervention under rule 24 of the Federal Rules of Civil Procedure or
apply to the rights of parties who have successfully intervened pursuant to such rule in the
proceeding in which the parties intervened;
(B) apply to the rights of parties to the action in which a litigated or consent judgment or order
was entered, or of members of a class represented or sought to be represented in such action, or of
members ofa group on whose behalf relief was sought in such action by the Federal Government;
(C) prevent challenges to a litigated or consent judgment or order on the ground that such
judgment or order was obtained tlirough collusion or fraud, or is transparently invalid or was
entered by a court lacking subject matter jurisdiction; or
(D) authorize or permit the denial lo any person ofthe due process of law required by the
Constitution.

(3) Any action not precluded under this subsection that challenges an employment consent
judgment or order described in paragraph (1) shall be brought in the court, and if possible before the
judge, that entered such judgment or order. Nothing in this subsection shall preclude a transfer of
such action pursuant to section 1404 of title 28.
(Pub. L. 88-352, title VII, §703, July 2, 1964, 78 Stat 255; Pub. L. 92-261, §8(a), (b), Mar. 24,
1972, 86 Stat 109; Pub. L. 102-166, title I , §§105(a), 106, 107(a), 108, Nov. 21, 1991, 105 Stat.
1074-1076.)
RKFIJRENCKS IN TEXT
The Subversive Activities Control Act of 1950, referred to in subsec. (f), is title 1 (§§1-32) of act Sept. 23,
1950, ch. 1024, 64 Stat. 987, which is classified principally to subchapter 1 (§781 et seq.) of chapter 23 of
Title 50, War and National Defense. For complete classification of this Act to the Code, see Tables.

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The Controlled Substances Act, referred to in subsec. (k)(3), is title 11 of Pub. L. 91-513, Oct. 27, 1970, 84
Slat. 1242, which is classified principally to subchapter 1 (§801 et seq.) of chapter 13 of Title 21, Food and
Drugs. For complete classification of this Act to the Code, see Short Title note set out under section 801 of
Title 21 and Tables.
The Federal Rules of Civil Procedure, referred to in subsec. (n)(2)(A), are set out in the Appendix to Title
28, Judiciary and Judicial Procedure.
AMENDMENTS
1991—Subsec. (k). Pub. L. 102-166, § 105(a), added subsec. (k).
Subsec. (/). Pub. L. 102-166, §106, added subsec. (/).
Subsec. (m). Pub. L. 102-166, § 107(a), added subsec. (m).
Subsec. (n). Pub. L. 102-166, §108, added subsec. (n).
1972—Subsec. (a)(2). Pub. L. 92-261, §8(a), inserted "or applicants for employment" after "his
employees".
Subsec. (c)(2). Pub. L. 92-261, §8(b), inserted "or applicants for membership" after "membership".
EFEECI iVE DATE OF 1991 AMENDMENT
Amendment by Pub. L. 102-166 effective Nov. 21, 1991, except as otherwise provided, see section 402 of
Pub. L. 102-166, set out as a note under section 1981 of this title.
SUBVERSIVE ACTIVITIES CONTROL BOARD
Subversive Activities Control Board established by act Sept. 23, 1950, ch. 1024, §12, 64 Stat. 977, and
ceased to operate on June 30, 1973.

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3 M U.S.C. Title42-THE PUBLIC HEALTH AND WELfl

42 U.S.C.
. United Stales Code, 2010 Edition
Title 42-THE PUB LIC HEALTH AND WELFARE
CHAPTER 21-CIVIL RIGHTS
SUBCHAPTER VI - EQUAL EMPLOYMENT OPPORTUNITIES
Sec. 2000e-l 6 - Employment by Federal Government
From the U.S. Government Printing Office, wvvvv.ppo.aov

§2000e-16. Employment by Federal Government
(a) Discriniinatoiy practices prohibited; employees or applicants for employment subject to
coverage
All personiTcl actions affecting einployees or applicants for employment (except with regard to
aliens employed outside the limits of the United States) in military departments as defined in section
102 of title 5, in executive agencies as defined in section 105 of title 5 (including employees and
applicants for employment who are paid from nonappropriated funds), in the United States Postal
Service and the Postal Regulatory Commission, in those units ofthe Government ofthe District of
Columbia having positions in the competitive service, and in those units of the judicial branch ofthe
Federal Government having positions in the competitive service, in the Smithsonian Institution, and
in the Government Printing Office, the Government Accountability Office, and the Library of
Congress shall be made free from any discrimination based on race, color, religion, sex, or national
origin.
(b) Equal Employment Opportunity Commission; enforcement powers; issuance of rules,
regulations, etc.; annual review and approval of national and regional equal employment
opportunity plans; review and evaluation of equal employment opportunity programs and
publication of progress reports; consultations with interested parties; compliance with rules,
regulations, etc.; contents of national and regional equal employment opportunity plans;
authority of Librarian of Congress
Except as olhenvise provided in this subsection, the Equal Employment Opportunity Commission
shall have authorify to enforce the provisions of subsection (a) of this section tlirough appropriate
remedies, including reinstatement or hiring of employees with or without back pay, as will effectuate
the policies of this section, and shall issue such rules, regulations, orders and instructions as it deems
necessary and appropriate to carry out its responsibilities under this section. The Equal Employment
Opportunity Commission shall—
(1) be responsible for the annual review and approval of a national and regional equal
employment opportunity plan which each department and agency and each appropriate unit
referred to in subsection (a) of this section shall submit in order to maintain an affirmative
program of equal employinent opportunity for all such einployees and applicants for employment;
(2) be responsible for the review and evaluation ofthe operation of all agency equal
employment opportunity programs, periodically obtaining and publishing (on at least a semiannual
basis) progress reports from each such department, agency, or unit; and
(3) consult wilh and solicit the recommendations of interested individuals, groups, and
organizations relating to equal employment opportunity.

The head of each such department, agency, or unit shall comply with such rules, regulations,
orders, and instructions which shall include a provision that an einployee or applicant for
employment shall be notified of any final action taken on any complaint of discrimination filed by
him thereunder. The plan submitted by each department, agency, and unit shall include, bul not be
limited to—
littp://www.gpo.gov/fdsys/pl•• Purpose and construction in general
In interpreting analogous statutory provisions of
No. 99-17350. Ai-gued and Submitted California's Fair Employment and Housing Act
Feb. 5, 2001 Filed Sept. 12, 2001 (FEHA), Court of Appeals would look to federal
authority regarding Title V l l and similar civil
Employee brought disability discrimination action against
rights staUites. Civil Rights Act of 1964, § 701
his employer, alleging violations of Califomia's Fair
et seq., 42 U.S.C.A. § 2000e el seq.; West's
Employment and Housing Act (FEHA). Following removal,
Ann.Cal.Gov.Codc § 12940 ct seq.
Ihe United States District Court for the Northem District
of California, Charles A. Legge, J., granted sununary 6 Cases that cite this lieadnote
judgment in favor of employer, and employee appealed.
The Court of Appeals, Canby, Circuit Judge, held that:
(I) construction of race discrimination charge to include |3| Federal Courts
disability discrimination claim was not warranted; (2) Z~ Employinent discrimination
einployee failed to exhaust his administrative remedies prior Courts of appeals review de novo district
to bringing disability discrimination claim under FEHA; (3) court's ruling that a plaintiffs menial disability
disability discriminalion claim did not relate back to race discrimination claim is barred for failure timely
discrimination claim, and thus complaint was untimely; but to exhaust his administrative remedies as
(4) genuine issue of material fact existed as to whether required by state civil rights statute.
employee was misled by California Department of Fair
Employment and Housing (DFEH) when he filed complaint, 10 Cases that cite this hcadnotc
as would pennit equitably excusing his noncompliance with
exhaustion requirement, precluding summary judgment for |4| Civil Rights
employer. Exhaustion of/\dininistrative Remedies
Before Resort to Courts
Reversed and remanded. In order to bring a civil action under
California's Fair Employment and Housing Act
(FEHA), the aggrieved person must exhaust the
West Hcadnolcs (21) administrative remedies provided by law. West's
Ann.Cal.Gov.Codc § 12940 ct seq.

Ml Federal Courts 11 Cases that cite this lieadnote
Failure to menlion or inadequacy of
treatment of error in appellate briefs [51 Civil Rights
Employee waived claim that district court 1-^ Employment practices
improperly took judicial notice of entire
Exhaustion requirement of California's Fair
state employment depaitment file prior to
Employment and Housing Act (FEHA) requires
summary judgment, in employee's disability
filing a written charge wilh state employment
discrimination action against his employer,
department within one year of the alleged
alleging violations of Califomia's Fair
unlawful employment discrimination, and
Employment and Housing Act (FEHA), where
obtaining notice from department of the right to
employee merely noted in a footnote in his
sue. West's Ann.Cal.Gov.Codc § 12940 cl seq.

'/.'•^ *i.-u.'Next't' :-!01.'3 i hcniFon i?3iiieis. No claim lo cri(iin?!l U.S. Govainmeiit Worlc.'^
Rodriguez v. Airborne Express, 2Wir3d 890 (2001)
12 A.b. Cases 321, 01 Cai. DaFy Op! ServT8076,^ 2001 DaiFy Journai D!A.R. 9931'

of the administrative investigation which can
7 Cases thai cite this lieadnote reasonably be expected lo grow out ofthe chaige
of discriminalion. West's Ann.Cal.Gov.Codc §
|6| Civil Rights 12940 et seq.
C •• Employinent practices
31 Cases that cite this hcadnotc
The scope of the written administrative charge
filed with state employment department defines
the permissible scope of the subsequent civil |9| Civil Rights
action under Califomia's Fair Employment and Employmeni practices
Housing Act (FEHA); allegations in the civil Employee failed to exhaust his administrative
complaint thai fall outside of the scope of the remedies prior lo bringing disability
adminislralive charge are barred for failure to discrimination claim against his employer
exhaust. West's Ann.Cal.Gov.Code § 12940 el under California's Fair Employment and
Housing Act (FEHA), although employee
orally complained of such discriminalion lo
42 Cases Ihal cite Ihis lieadnote state employmeni department intake officer,
because oral slalements did not cure legal
|7| Civil Rights defects in discrimination charge, which failed
0-= Employment practices lo specifically allege disability discrimination
charge. West's Ann.Cal.Gov.Codc § 12940 et
Under California law, construction of
seq.
employee's original race discrimination charge
against his employer filed wilh slate 3 Cases lhat cite this lieadnote
employment department lo include a claim of
disability discrimination was not warranted,
for purposes of exhaustion of employee's |10| Civil Rights
administrative remedies required before he Judicial review and enforcement of
could bring action under California's Fair administrative decisions
Employment and Housing Act (FEHA), because Courts of Appeals reviews de novo question
employee's race discrimination charge would whether nnlimely amended discriminalion
not reasonably trigger an investigation into charges under state civil rights statute relate back
disability discriminalion, where claims involved to original administrative complaint.
totally different kinds of allegedly improper
conduct, and difference between charge and Cases that cite this lieadnote
complaint was a matter of adding entirely
new basis for alleged discriminalion. West's [JII Civil Rights
Ann.Cal.Gov.Code § 12940 etseq. C=> Time for proceedings; limitations

23 Cases that cite this lieadnote Relation-back doctrine is available in
appropriate circumstances to render timely an
otherwise untimely amendment lo a charge under
|8| Civil Rights California's Fair Employment and Housing Act
0^ Employmeni practices (FEHA). West's Ann.Cal.Gov.Code § 12940 ct
Under California law, in order for employee's seq.
charge of race discrimination lo be construed
lo include a disability discrimination claim, 3 Cases that cite this lieadnote
the disability ground would have lo be like
or reasonably related lo the claim of race 112) Civil Rights
discrimination; this standard is met where the Jurisdiction and authority
allegations in the civil suit are wiihin the scope

'!".".Next - Judicial review and enforcement of liinitalions and are subject lo equitable doctrines
adminislralive decisions such as waiver, estoppel, and lolling. West's
Federal courts accord great respect to slale Ann.Cal.Gov.Code § 12940 et seq.
fair employment department commission's
inierprelalion of its authority and will follow it 6 Cases thai cite this hcadnotc
unless it is clearly erroneous.
[171 Civil Rights
Cases tluil cite this headnolc
1-=^ Charges and investigations
Under California law, the purpose of filing
|14| Civil Rights a charge with California Department of Fair
' Judicial review and enforcenient of Employment and Housing (DFEH) prior to
adminislralive decisions filing a civil lawsuit under California's Fair
Court of Appeals would give no weight Employment and Housing Act (FEHA) is lo
to fact that California DepartmenI of Fair enable that agency lo investigate the charges and
Employment and Housing (DFEH) had accepted allcmpl to obtain voluntary compliance wilh the
and filed employee's untimely amendment to law. West's Ann.Cal.Gov.Code § 12940 et seq.
add disability discrimination charge to race
discrimination coinplaint, in employee's aclion 2 Cases that cite this lieadnote
against his employer, alleging violations of
California's Fair Eiiiploynient and Housing Act |18J Civil Riglits
(FEHA), for purposes of determining whether Time for proceedings; limitations
ainendment related back to original complaint.
As with virtually any equitable doctrine,
West's Ann.Cal.Gov.Code § 12940 et seq.
application of exception under California law
34 Cases that cite this headnole excusing untimely filing of a charge with
California's Department of Fair Employment
and Housing (DFEH) prior to filing a civil
115] Civil Rights lawsuit under California's Fair Employment
j > Time for proceedings; liinitalions and Housing Act (FEHA) requires balancing
Under California law, as predicted by the Court the equities in the particular case. West's
of Appeals, employee's disability discrimination Ann.Cal.Gov.Code § 12940 et seq.
claim did not relate back to his original race
discrimination complaint, and thus employee 5 Cases lhat cite this hcadnotc
failed lo timely file adminislralive complaint
with California Department ofFair Employment | ipj Civil Riglits
and Housing (DFEH) prior to bringing disability C-^ Time for proceedings; liinitalions
discrimination claim, where administrative
For purposes of exception under California
complaint alleging that employee was tenninated
law excusing untimely filing of a charge with
California's Department of Fair Employment

- i l " ' ..Next €•) 9015 Tli'inison Reiiter.s. No cl=iini lo oiiyinal U.S. Government Woiks.
Rodriguez v. Airborne Express, 29lllr3d 890 (2001)
12 A.D. Cases 321, 01 Cai. Daily Op. Serv~8076^ 2001 Daiiy Journal'D.'A.R^9931

and Housing (DFEH) prior lo filing a civil
lawsuit under California's Fair Employmeni Appeal from the United Stales District Court for the Northern

and Housing Act (FEHA), the equities favor District of Califomia Charles A. Legge, District Judge,

a discrimination plaintiff who: ( I ) diligently Presiding. D.C. No. CV-99-00057-CAL.

pursued his claim; (2) was misinformed or
Before: PREGERSON, CANBY, and THOMPSON, Circuit
misled by the administrative agency responsible
Judges.
for processing his charge; (3) relied in facl
on the misinfonnalion or misrepresenlations of Opinion
that agency, causing him lo fail lo exhaust his
adminislralive remedies; and (4) was acting pro CANBY, Circuit Judge:
se al lhe lime. West's Ann.Cal.Gov.Code § 12940
Plaintiff Robert Rodriguez brought this action against
ct .seq.
Defendant Airborne Express ("Airborne") for discrimination
26 Cases that cite this lieadnote based on disability in vioialion of California's Fair
Employment and Housing Act ("FEHA"). After removing
the ease to federal court on the ground of diversity of
|2«| Equity,'
citizenship. Airborne moved for summary judgment. The
C- Application and operation in general
district courl granted the motion, dismissing Rodriguez's
Diligence is required for the successful action for failure to exhaust administrative remedies under
invocation of virtually any equitable doctrine. FEHA. We have jurisdiction under 28 U.S.C. § 1291, and
we reverse the summary judgmeni and remand for further
2 Cases that cite this lieadnote
proceedings to deten

Case Info

Judge

David I. Brown Track Judge’s New Case

Case No.

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Document Filed Date

May 11, 2015

Case Filing Date

September 09, 2013

County

Parties

ACLU Foundation of Northern California Inc Amicus Curiae
American Pacific Corporation Defendant
Dennis R. Murphy Attorney for the Defendant
Department of Fair Employment and Housing Plaintiff
Does 1-10 Defendant
Elizabeth Kristen Attorney
Equality California Amicus Curiae
Gay-Straight Alliance Network Amicus Curiae
Gender Spectrum Amicus Curiae
Ilona M Turner Attorney
Legal Aid Society - Employment Law Center Amicus Curiae
Lozano, Nick Real Party In Interest (rpii)
National Center for Lesbian Rights Amicus Curiae
Roya S Ladan Attorney for the Plaintiff
Transgender Law Center Amicus Curiae
Jon Ichinaga Attorney
Nelson Chan Attorney
Aaron Silva Attorneys for Defendants
Matthew Wood Attorney
Claudia Center Attorney
Brandon Howard Attorney
Linda Yen Attorney
Joseph Todoroff Attorney
Jeffrey Lyddan Attorney
Joseph Toma Attorney
David Bae Attorney

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Exhibit,Appendix: Department of Fair Employment and Housing vs. American Pacifi...

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