Statutory Immunity No Bar to Liability for Public Entity

December 31, 2008

When 69-year-old Theodore DeJung was rejected for a full-time commissioner position for the Sonoma County Superior Court in favor of a person 26 years his junior, Mr. DeJung sued the court for age discrimination in violation of the Fair Employment and Housing Act.  The Superior Court moved for summary judgment contending that the superior court enjoyed discretionary immunity against suits for employment discrimination under the FEHA when selecting candidates for commissioner positions.  The trial court agreed.

The appellate court, however, reversed the trial court’s decision finding that governmental discretionary immunity does not apply to employment discrimination actions under FEHA against public entities as employers.

The Tort Claims Act sets forth specific public employee immunities.  Government Code Section 820.2, sometimes referred to as the “discretionary act immunity,” states: “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 be abused.”

Government Code Section 815.2(b) states: “Except 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 question was whether the discretionary act immunity for public employees, when read together with Section 815.2(b), provided the superior court “as an entity” with immunity from FEHA claims based on the discretionary acts of its judiciary in selecting appointees for commissioner positions.

Because the FEHA defines the term “employer” as including “the state or any political or civil subdivision of the state, and cities ….” the court believed the Legislature intended to subject public entities to liability for violations of FEHA.  Therefore, it was a “clear indication of legislative intent that Section 820.2 and Section 815.2(b) immunity be withdrawn.”

Sayar Fausto, LLP
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Los Altos, CA 94022
Tel: (650) 948-6114
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