[authors: Gregg Fisch and Danielle Levine]
In the published portion of its recent decision in Rickards v. United Parcel Service, Inc., Case No. B234192 (filed June 19, 2012), the California Court of Appeal held that a complaining employee can satisfy the jurisdictional prerequisites for filing a lawsuit under the Fair Employment and Housing Act (“FEHA”) by simply submitting a complaint through the Department of Fair Employment and Housing’s (“DFEH”) online automated system.
In Rickards, the complaining employee, George Rickards, brought suit against his former employer, United Parcel Service, Inc. (“UPS”), alleging six causes of action under FEHA for discrimination, harassment, and retaliation based on disability and age. Prior to filing the lawsuit, in February 2010 (less than one year after the alleged discriminatory conduct occurred), Rickards’ attorney filed a FEHA complaint on Rickards’ behalf through DFEH’s automated on line system. The system required that the information be verified under penalty of perjury but did not require an actual signature. Rickards’ attorney clicked the “CONTINUE” prompt on a screen containing a declaration under penalty of perjury about the truth of the complaint he was submitting. DFEH’s automated system then issued an automatic right-to-sue letter. At his deposition, Rickards had testified that he did not know anything about the DFEH complaint. But, in declarations submitted thereafter, Rickards and his attorney averred that the attorney was authorized to file the DFEH complaint on Rickards’ behalf. Thereafter, the trial court granted summary judgment in favor of UPS, on the ground that Rickards’ failure to file a verified DFEH complaint was a jurisdictional defect.
The Court of Appeal reversed the trial court’s summary judgment ruling. Relying on Blum v. Superior Court, 141 Cal. App. 4th 418, 422 (2006), the Court of Appeal concluded that Rickards’ DFEH complaint was properly verified under the circumstances. In Blum, the court approved the practice of attorney verification of a DFEH complaint for a client, so long as the attorney signs the complaint with his or her own name, rather than the client’s name. Id. at 428. A couple of years later, in 2008, the DFEH announced its online automated system for issuing right-to-sue letters, which did not prompt input of the attorney’s name on the complaint, nor did it provide for a physical signature. Thereafter, in 2010, the DFEH proposed new regulations for processing discrimination complaints, several of which make clear that an online verified complaint need not be signed. However, these regulations did not become effective until 2011.
The Court of Appeal held that the DFEH regulations applied retroactively and, thus, validated the complaint filed on behalf of Rickards. In so ruling, the Court of Appeal rejected UPS’s argument that, even if the regulations dispensed with the signature requirement for online complaints, they do not apply retroactively. The Court concluded that the 2011 regulations simply confirmed what the DFEH’s automated system for online complaints has permitted since 2008—that verification of online complaints is permissible without a physical signature. The Court further held that this analysis was consistent with Blum (where online complaints were not at issue), which held that attorneys may verify DFEH complaints so long as they personally are subject to penalties for perjury. Id. Indeed, in this instance, Rickards’ attorney was subject to the penalty of perjury for submitting the DFEH complaint on behalf of Rickards. Thus, the Court found that attorney verification of the online DFEH complaint—even without an attorney signature—is sufficient to meet the jurisdictional prerequisites.