After being demoted from his position as the head football coach at Contra Costa Community College in March 2004 and ultimately terminated from the College at the conclusion of the 2005 school year, Jose Ortega (?Ortega?) filed grievances under the grievance procedure set forth in the collective bargaining agreement between Union Faculty, the union representing Ortega, and the Contra Community College District (?District?). After his grievances were denied, Ortega filed two separate suits against the Contra Costa Community College District under the California Fair Employment and Housing Act (?FEHA?) challenging the demotion and the termination. Ortega then filed two separate lawsuits against the District for race discrimination, intentional infliction of emotional distress, and negligent supervision.
The trial court dismissed each complaint, concluding that Ortega failed to exhaust the administrative remedies provided in the collective bargaining agreement entered into between his union and the District. The appellate court, however, concluded that the trial court erred because the District's internal grievance procedures were created by a collective bargaining agreement and culminated in an arbitration, and thus, neither administrative nor judicial exhaustion applied to bar Ortega's claims. The appellate court went on to hold that the collective bargaining agreement grievance procedure, which essentially provided for arbitration, does not eliminate an employee?s right to a jury trial of important statutory rights unless two conditions are met. First, the collective bargaining agreement must make the waiver of a jury trial ?clear and unmistakable.? Second, the arbitration procedures must ?allow for the full litigation and fair adjudication of the FEHA claim.? Here, the collective bargaining agreement did not contain a clear waiver of Ortega?s right to proceed in the judicial forum. In addition, the record was unclear as to whether the fact-finding process under the collective bargaining agreement was sufficient. Therefore, the court held that Ortega?s utilization of the grievance procedure did not bar him from asserting his FEHA claims, and the trial court erred in dismissing his actions.

Ortega v. Contra Costa Cmty. Coll. Dist., 156 Cal. App. 4th 1073 (2007).

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