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Okoli v. Lockheed Technical Operations Co.7/21/1995
COTTLE, P.J.:
Charles Okoli filed a charge of discrimination against his employer, Lockheed Technical Operations Company (Lockheed), with the California Department of Fair Employment and Housing (DFEH). The charge alleged that Okoli's supervisor had denied him a promotion based on Okoli's race and national origin and had made derogatory comments to him. While DFEH was investigating the charge, Lockheed allegedly subjected Okoli to numerous adverse employment actions in retaliation for filing the DFEH charge. However, Okoli did not amend his DFEH charge to include these acts of retaliation; nor did he file a new charge based on retaliation. Later, after Okoli received his "right to sue" letter from DFEH, he brought the instant action against Lockheed, alleging racial and national origin discrimination, racial harassment, and retaliation. The jury rendered a defense verdict on the discrimination and harassment causes of action but found in Okoli's favor on the retaliation cause of action. On appeal, Lockheed argues that Okoli's retaliation claim is barred by the exhaustion of remedies doctrine. We agree and, accordingly, reverse the judgment.
FACTS
We relate here only the facts that are pertinent to the exhaustion of remedies issue.
Okoli filed his charge of discrimination with DFEH on May 18, 1988. In the charge he indicated the "discrimination based on race" and the "most recent or continuing discrimination took place 2/10/88." When asked for "the particulars," he recounted: "I. I have been employed by Lockheed Missiles and Space Co., Technical Operations since 7-13-84. My current salary is $583.00 per week. On 2-10-88, I was denied promotion to the position of Alternate Lead Planner Analyst by Daniel Pentacost, Real Time Supervisor. During the course of my employment I was harassed, the incident occurring on 9-8-87. II. Mr. Pentacost's reasons for not promoting me were that I had a language problem and that my evaluation was poor. III. I believe that I have been denied promotion and harassed because of my Race, Black and because of my national origin, on the basis that: 1. I was second in seniority and Real Time experience. I have all the qualifications for the position. 2. Another employee of my same race who was highest in seniority and Real Time experience was also denied this position. 3. A White employee who had less seniority and Real Time experience than myself was promoted to this position. 4. No minorities of the Black race have had any management positions in this department. 5. On at least two different occasions, the supervisor made derogatory comments about my national origin. Upon returning from an emergency trip from Africa, and on another occasion, Mr. Pentacost implied by his comments that I was running drugs."
DFEH investigated the claim over the next several months and in December 1988 closed its file and notified Okoli of his right to pursue civil litigation.
On June 20, 1989, Okoli filed suit against Lockheed. His complaint alleged, inter alia, causes of action for racial discrimination, racial harassment, and retaliation under the Fair Employment and Housing Act (FEHA) (Gov. Code, ยง 12900 et seq.). Lockheed demurred, pointing to Okoli's failure "to plead sufficient facts to demonstrate that [he has] met the necessary prerequisites to suit under the FEHA." Lockheed asserted that Okoli had "not alleged which, if any of defendants' personnel actions [Okoli had] made the subject of a DFEH complaint . . . ."
After Okoli filed his first amended complaint, Lockheed filed a general denial and also asserted several separate affirmative defenses. Relative to this appeal is the fifth affirmativ
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