(Super. Ct. No. 30-2008-00114482) Appeal from a judgment of the Superior Court of Orange County, Joseph E. Di Loreto, Judge.
The opinion of the court was delivered by: Aronson, J.
CERTIFIED FOR PUBLICATION
(Judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Plaintiff Linda Wills appeals from the judgment entered after the trial court granted a summary judgment motion by defendant Superior Court of the State of California, County of Orange (OC Court). Wills worked for the OC Court until it terminated her employment for violating its written policy against verbal threats, threatening conduct, and violence in the workplace. Wills sued the OC Court, alleging it terminated her for conduct related to her mental disability. Wills argued the Fair Employment and Housing Act (FEHA) prohibits an employer from terminating or disciplining an employee for workplace misconduct caused by a disability in the same manner as it prevents an employer from discriminating against an employee for having a disability.
The trial court granted the OC Court's summary judgment motion on the grounds that (1) Wills failed to exhaust her administrative remedies on the six FEHA causes of action relating to discrimination and harassment she alleged in her operative pleading and (2) Wills's misconduct provided a legitimate, nondiscriminatory basis for terminating her employment. We agree Wills failed to exhaust her administrative remedies as to five of her six causes of action, and the remaining cause of action fails because Wills's misconduct provided a legitimate, nondiscriminatory reason for her termination. Specifically, Wills's disability discrimination claim fails because an employer may reasonably distinguish between disability caused misconduct and the disability itself when the misconduct includes threats or violence against co-workers. In these circumstances, terminating the employee based on the misconduct does not amount to discrimination prohibited by FEHA. Consequently, we affirm the trial court's judgment.
I FACTS AND PROCEDURAL HISTORY
Wills's doctor diagnosed her with bipolar disorder in 1997. Bipolar disorder is a mental disability characterized by mood swings between depressive and manic episodes. Persons experiencing a manic episode may become irritable, verbally and physically aggressive, and loud. Inappropriate behavior also can occur, including blurting out socially inappropriate and even threatening comments. A manic episode also may produce difficulty in controlling impulses and temperament. Grandiose thinking and increased self-esteem often accompany these other symptoms. Persons suffering a manic episode commonly will not recall clearly what they did or thought during the episode.
Psychiatric care and medication aid in controlling bipolar disorders, but manic and depressive episodes may still occur. Persons experiencing a manic episode sometimes require new or adjusted medication and may require hospitalization to treat the chemical imbalances causing the episode or to separate them from any triggering stimulus in their environment. When the condition is properly managed, individuals can have extended periods without either a manic or depressive episode.
Wills began working for the OC Court in 1999 as a court processing specialist, and later became a court clerk. During Wills's employment, she took numerous medical leaves to treat her bipolar disorder, but neither she nor her doctor informed the OC Court why Wills needed the time off. Wills, however, did tell some of her supervisors she suffered from depression.
In early July 2007, the OC Court assigned Wills to the Anaheim Police Department's lockup facility to help arraign criminal suspects by video. On July 3, Wills arrived for work and rang the buzzer for entry into the secured facility. She waited outside for several minutes before being admitted.
When she entered the lockup area, Wills angrily swore and yelled at Anaheim Police Department employees, accusing them of intentionally leaving her outside in the summer heat. Wills told Officer Todd Gardetto she added him and detention facility assistant Michelle Nellesen to her "Kill Bill" list for leaving her out in the heat. Gardetto and Nellesen both felt threatened by Wills's demeanor and statements. They understood the "Kill Bill" list comment to refer to a movie in which the main character made a list of people she intended to kill.
Although Wills did not make the "Kill Bill" comment directly to Nellesen, Gardetto informed Nellesen about the comment shortly after Wills made it. Moreover, Wills angrily told Nellesen never to leave her outside again. In reporting the matter to her supervisor, Nellesen asked if she should seek a restraining order against Wills. Other employees who witnessed Wills's outburst also viewed it as threatening Gardetto and Nellesen.
Despite Wills's conduct, the Anaheim Police Department permitted her to complete her shift. But the department reported the incident to the OC Court, and demanded the OC Court never again assign Wills to its facility. The OC Court agreed to the department's demand.
At her deposition, Wills disputed the events and circumstances surrounding the "Kill Bill" comment. She denied threatening to put anyone on a "Kill Bill" list. According to Wills, she and Gardetto were joking during some downtime an hour or more after she entered the facility. Wills testified she asked Gardetto if he knew about the "Kill Bill" movie and what would happen if she put him and Nellesen on a "Kill Bill" list. Wills explained she asked the question as a joke and Gardetto laughed in response.
Wills was unaware of it at the time, but these events occurred during the early stages of a severe manic episode. A few days later, Wills's doctor placed her on medical leave to treat her manic episode.
While out on leave, Wills forwarded a cell phone ringtone to several people, including a co-worker. The ringtone's video portion showed the character Buckwheat from The Little Rascals television show. Its audio portion repeatedly commanded the recipient to check his or her messages. The commands grew in anger and volume, culminating in a shrieking directive: "'I'm going to blow this bitch up if you don't check your messages right now! . . . Fuck you!'" The co-worker who received the ringtone reported it to the OC Court, complaining the ringtone's tenor and content disturbed and frightened her. The co-worker explained she felt the threats were directed to her because she had an uneasy relationship with Wills.
Also while out on leave, Wills sent numerous e-mail messages to friends and family members and to several co-workers at e-mail addresses the OC Court provided. The e-mails rambled wildly as Wills vented a wide array of thoughts and emotions. Wills expressed extreme anger at certain family members, disowning them and vowing never to see or speak with them again. She also expressed love and gratitude for other family members and friends who continued to support her. The desultory e-mails covered topics ranging from her conversations with God to trips she planned to take. In the e-mails, Wills acknowledged their sometimes disturbing and threatening tone, but explained everything nonetheless needed to be said.
One co-worker reported the e-mails to the OC Court, complaining that Wills's angry and irrational tone, and Wills's references to violence, alarmed her. The co-worker believed Wills directed some of the threats to her based on the following statements: (1) "I say that because I'm covering my ass, just in case one of you evil bitches feel like punishing me again by calling the police or showing them my numerous 'so called hate' emails" and (2) "BUT GOD TOLD ME, 'DON'T WORRY LINDA, YOUR FAMILY AND SO CALLED FRIENDS WILL PAY FOR WHAT THEY PUT YOU THROUGH THIS WHOLE TAXING WEEK, AND GET THEM OUT OF YOUR MIND BECAUSE THEY ARE NOT WORTH YOU[R] PAIN AND SUFFERING ANYMORE.['] DO ANYTHING YOUR PRECIOUS HEART DESIRES, BECAUSE I, GOD WILL NOW PROTECT YOU FROM EVIL AND THE DEMONS THAT CAME OUT IN YOUR FAMILY AND FRIENDS. THEY WILL PAY FOR WHAT THEY DID TO YOU." The co-worker thought the references to "'evil bitches'" and "'so-called family and friends'" referred to her. The co-worker explained that several days before receiving the e-mails, Wills called her in a distraught state and talked about suicide. The co-worker told Wills she was going to call 911 to get Wills help.
Several weeks later, Wills's manic episode ended and her doctor cleared her to return to work without restrictions. On the day of her scheduled return, however, the OC Court placed Wills on paid administrative leave to investigate the incident at the Anaheim Police Department and the complaints regarding the ringtone and e-mail messages. During this investigation, Wills's doctor submitted a letter to the OC Court explaining Wills suffered from bipolar disorder that caused her behavior in these incidents. Wills's doctor further explained Wills at no time posed a danger to anyone.
During its investigation, the OC Court interviewed Wills, who initially denied making any comment about a "Kill Bill" list, but later stated she intended it as a joke. Wills also characterized the ringtone as a joke and claimed she did not recall what she said in the e-mails or to whom she sent them.
After completing its investigation, the OC Court decided to terminate Wills's employment. In October 2007, the OC Court sent Wills a termination notice identifying the following grounds: "1. Threatening a peace officer and other Anaheim Police Department personnel with physical harm while conducting official Court business. [¶] 2. Threatening and inappropriate communications with co-workers. [¶] 3. Misuse of Court Resources. [¶] 4. Poor Judgment." The OC Court explained Wills's conduct violated its employee handbook provisions prohibiting verbal threats, threatening behavior, and violence. The OC Court also concluded that Wills's behavior and her efforts to minimize her conduct as a joke demonstrated poor judgment.
Wills responded with a letter asserting the OC Court unlawfully discriminated against her based upon her mental disability. She explained her bipolar disorder caused the behavior cited as the basis for her termination, and the conduct occurred while she experienced a severe manic episode. Wills further alleged a group of co-workers triggered her manic episode by harassing her. Finally, Wills asserted the OC Court fired her in retaliation for complaining to her supervisors about the harassment.
After receiving Wills's letter, the OC Court delayed her termination and hired an independent investigator to explore her harassment claims. Wills based her allegations on a co-worker's comment Wills perceived as a threat to assault her. Wills told the investigator she shared an elevator with four co-workers with whom she did not get along and who intimidated her. As Wills's friend rushed to catch the elevator, Wills joked she would not hold the elevator for her friend. When Wills's friend reached the elevator, one co-worker told her, "'We won't say anything if you want to beat [Wills] up.'" Wills felt uncomfortable and intimidated because she construed the co-worker's remark as an implicit threat to beat her up. After questioning the witnesses, the investigator concluded the comment did not amount to a credible threat of physical harm, but nonetheless was offensive and inappropriate.
In January 2008, after considering Wills's response to the termination notice and the investigator's report regarding the harassment allegations, the OC Court terminated Wills's employment. Wills thereafter filed a discrimination complaint with the Department of Fair Employment and Housing (DFEH) asserting the OC Court violated FEHA. After obtaining a right-to-sue notice from DFEH, Wills filed this action. Wills's operative first amended complaint alleged six FEHA causes of action for disability discrimination, retaliation, hostile work environment, failure to prevent harassment, failure to engage in the interactive process, and failure to make reasonable accommodations.
The OC Court moved for summary judgment arguing (1) Wills failed to exhaust her administrative remedies as to her six FEHA causes of action, and (2) Wills could not otherwise establish an essential element of each cause of action. The trial court agreed and granted the OC Court's motion. The court found Wills failed to exhaust her administrative remedies with DFEH because her administrative complaint referred only to discrimination based on the denial of family or medical leave, but omitted the disability discrimination and harassment claims she later alleged in her judicial complaint. In the alternative, the trial court found Wills's FEHA claims failed as a matter of law because the OC Court terminated her employment for a legitimate, nondiscriminatory reason -- Wills violated the OC Court's written policies prohibiting threats and violence in the workplace.*fn1 This appeal followed.
Wills advances two main arguments to overturn the judgment. First, she contends the exhaustion of administrative remedies doctrine did not require her to use any particular words in the administrative complaint she filed with DFEH. Wills argues she satisfied the exhaustion requirement because a reasonable investigation of the allegations in her administrative complaint would have uncovered the discrimination and harassment claims she later alleged in her judicial complaint. Second, Wills argues the OC Court improperly terminated her based on conduct caused by her mental disability because FEHA treats disability-caused misconduct as part of the disability. Wills contends a termination based on that conduct violates FEHA in the same manner as termination based on the disability itself.
A. Exhaustion of Administrative Remedies
Before filing a civil action alleging FEHA violations, an employee must exhaust his or her administrative remedies with DFEH. Specifically, the employee must file an administrative complaint with DFEH identifying the conduct alleged to violate FEHA. At the conclusion of the administrative process, which may or may not include an investigation or administrative remedies, DFEH generally issues the employee a right-to-sue notice. (Medix Ambulance Service, Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 116.)
The OC Court does not dispute Wills timely filed an administrative complaint with DFEH and obtained a right-to-sue notice. "The question is whether [Wills] can maintain the instant action for alleged incidents of discrimination [retaliation, harassment, and failure to accommodate] which were not specifically enumerated in [her] complaint before the DFEH." (Baker v. Children's Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1062.)
Wills's DFEH complaint marked the box for discrimination based on "denial of family/medical leave" only. Her complaint did not mention disability discrimination, retaliation, harassment, or failure to accommodate a disability. Instead, the complaint alleged the OC Court discriminated against Wills by refusing to reinstate her following her medical leave of absence. Although filed after the OC Court terminated Wills, her DFEH complaint did not mention her termination.
Upon receiving the administrative complaint, DFEH forwarded a copy to the OC Court. (See Gov. Code, § 12962.) The OC Court responded to DFEH by letter, explaining Wills's discrimination claim based on denial of family or medical leave lacked merit because the OC Court granted all her leave requests. The letter also explained in detail the OC Court's reasons for terminating Wills and why her termination did not constitute disability discrimination. Finally, the letter explained the OC Court "drafted [it] as though Ms. Wills has claimed either disability discrimination or retaliation based on a protected leave, even though neither is directly indicated by Ms. Wills on her complaint form."
Unlike her DFEH complaint, Wills's judicial complaint did not allege denial of family or medical leave. Instead, the judicial complaint alleged six causes of action for FEHA violations ...