Government Employer Is Not Immune From Suit For Discrimination Under California Fair Employment And Housing Act

In DeJung v. Superior Court of Sonoma County, (— Cal.Rptr.3d —, Cal.App. 1 Dist., Dec. 19, 2008), a California Court of Appeal considered whether statutory immunity protects against public entity liability for employment discrimination under California’s Fair Employment and Housing Act (“FEHA”). The Court of Appeal held that “governmental discretionary immunity does not apply to employment discrimination under FEHA against public entities as employers.”


Theodore DeJung was born in 1939. He was admitted to the State Bar of California in 1972. He began working for the Sonoma County Municipal Court in 1976 as a traffic referee. In 1982, DeJung took the position of municipal court commissioner. He worked for 14 years as a full-time commissioner. The municipal court system and the superior court system were later consolidated. Beginning in 1996 and continuing through the spring of 2004, DeJung split the full-time position with another commissioner, Gail Guynup. When Guynup told DeJung that she intended to stop working, DeJung spoke to the presiding judge of the Superior Court of Sonoma County (“Superior Court”) about finding a replacement for Guynup. However, the presiding judge, Allan Hardcastle, eventually told DeJung that the Superior Court’s executive committee (“Committee”) did not want to continue to split the full-time commissioner position. DeJung then informed Hardcastle that he wanted to continue as a full-time commissioner.

DeJung claims that one week later he asked Hardcastle about the Committee’s response to his desire to continue as a full-time commissioner, to which Hardcastle responded that “they want somebody younger, maybe in their 40’s.” DeJung alleges that a few days later, he went to Hardcastle’s chambers and asked Hardcastle if he had told the Committee that DeJung wanted the full-time position and also asked if the Committee had indicated they wanted someone younger for the position. Hardcastle allegedly confirmed DeJung’s inquiries with a nod. DeJung’s former bailiff claims that Hardcastle told him the Committee was “looking for someone younger.”

The Committee, who decided to recruit for a full-time commissioner, received 53 applicants and decided to interview 12 candidates who ranged in age from 37 to 62. None of the interviewers ranked DeJung as their top choice. The top three candidates selected by the interview panel were 50, 56, and 62 years old. However, the Committee ultimately hired a 43-year old applicant for the position.

DeJung filed a lawsuit against the Superior Court alleging age discrimination in hiring. The trial court granted summary judgment in favor of the Superior Court finding that it “enjoyed discretionary immunity against suits for employment discrimination under FEHA when selecting candidates for commissioner positions.”


The Court of Appeal held that the Superior Court did not enjoy discretionary immunity against lawsuits for employment discrimination under FEHA. Accordingly, the court held that the lower court erred in granting summary judgment in favor of the Superior Court.

The California Tort Claims Act allows private tort actions against government entities where provided for by statute. The Act “applies to all public entities and their employees, including judges and other employees of the superior court.” Government Code section 815.2 subdivision (a) provides that a governmental entity is generally liable for the acts of its employees. However, subdivision (b) of section 815.2 provides that “[e]xcept as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” The Act sets forth specific public employee immunities including one known as “discretionary act immunity.” Government Code section 820.2 covers “discretionary act immunity” and provides, “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion is abused.”

The Superior Court argued that when section 815.2, subdivision (b), is read together with the “discretionary act immunity” provision of section 820.2, the Superior Court as an entity is immune from liability “from FEHA claims based on the discretionary acts of its judiciary in selecting appointees for commissioner positions.” In Caldwell v. Montoya, (1998) 10 Cal.4th 972, the California Supreme Court held that discretionary act immunity “prohibits suits under FEHA against public employees or officials as individuals when the suit challenges a personnel action that amounts to a ‘basic policy decision,’ such as the selection or dismissal of the chief operating official of a school district.” The Court also held that a public entity for which an employee works cannot be held vicariously liable for that “employee’s actions to the extent that the employee is immune from suit.” The Caldwell Court, however, expressly declined to decide “whether a government employer as an entity is amenable to suit under FEHA despite the discretionary act immunity and section 815.2(b).”

The Court of Appeal concluded that FEHA creates direct liability for violation of its terms and that public entities are subject to liability for violation of FEHA. Under FEHA, no employer may discriminate on the basis of age when making employment decisions. The court found that “FEHA functions as an exception to the general grant of immunity under section 815.2(b).” The Superior Court was not empowered “to discriminate in selecting subordinate judicial officers on a basis prohibited under FEHA.” Therefore, DeJung was not precluded as a matter of law from proceeding with his lawsuit against the Superior Court.

Next, the court examined the issue of whether DeJung had raised a triable issue of fact as to whether the Superior Court had actually discriminated against him. The court concluded that he had raised a triable issue of fact. DeJung presented direct evidence of discrimination–Hardcastle’s statements that the Committee wanted someone younger for the job.

The Superior Court asserted that even if Hardcastle had made the alleged statements, they “did not taint its decision-making process because the hiring decision involved a multi-level process conducted by multiple individuals.” The Court of Appeal found that DeJung did not need to show that everybody involved in the hiring process harbored discriminatory animus against him. A “showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory, even absent evidence that others in the process harbored such animus.”

The Court of Appeal held that the trial court erred in granting summary judgment in favor of the Superior Court. Accordingly, the Court of Appeal remanded the case back to the trial court so that DeJung could proceed with his lawsuit against the court.


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