Don’t Forget the Right-to-Sue Letter!

When a plaintiff sues a former employer for FEHA violations, plaintiff must prove that he/she exhausted his/her administrative remedies. This is often shown by producing a timely Right-to-Sue letter from DFEH.

What happens when the case goes to trial and plaintiff fails to introduce the right-to-sue letter to show that plaintiff’s administrative remedies were exhausted?

Smart defendants will move for JNOV pointing out that plaintiff produced no evidence of exhaustion of administrative remedies. If the trial court is not wise enough to grant defendant’s motion and if the jury returns a verdict for plaintiff, the appellate court will remind the trial court and plaintiff’s counsel that it’s plaintiff’s burden to proffer evidence of exhaustion by producing the right-to-sue letter and will instruct the trial court that it should have granted defendant’s motion for JNOV.

On its face this decision seems to make sense, but the exhaustion of remedies issue in a FEHA case seems to me to be rather silly anyway since a plaintiff can request an immediate right-to-sue letter. I still do not know what the point of having to prove exhaustion when all a plaintiff has to do is request a letter. Also, there is the argument that the exhaustion requirement is simply a prerequisite to filing a lawsuit – not something that should be proven at trial.

I guess it doesn’t matter what I think, what matters is what the Fourth District of the California Court of Appeals thinks.

Note to self: “Exhibit A” in next FEHA trial is the right-to-sue letter!

Dickinson v. Allstate Insurance Company, 2013 WL 1695574 (Unpublished).

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