In May 2015, Arno Patrick Kuigoua started working for the California Department of Veterans Affairs as a registered nurse at the Knight Veterans Home in Lancaster, California. His employment with the Department ended in October 2018. The Department fired him after determining he sexually harassed women and delivered substandard care that injured patients.

Kuigoua appealed his termination to the State Personnel Board, which, after a six-day hearing, rejected his appeal. The administrative law judge ruled Kuigoua’s dismissal was just and proper. Unsuccessful in altering this ruling were Kuigoua’s petition for rehearing, his petition for writ of mandate, his appeal of the writ denial, and his 2022 petition for review by the California Supreme Court.

Just before his State Personnel Board hearing, on April 2, 2019, Kuigoua filed an administrative charge of employment discrimination. He filed this charge concurrently with the California Department of Fair Employment and Housing and the federal Equal Employment Opportunity Commission.

Kuigoua’s Commission Form reported that, during three and a half months in 2018, someone discriminated against him on the basis of Kuigoua’s male gender. Kuigoua also suffered retaliation, apparently for reporting this discrimination. The retaliation took the form of denying him the opportunity to earn overtime pay. The Department failed to ameliorate these problems and finally discharged him altogether. Kuigoua said his direct antagonist was Julian Manalo.

An equal opportunity officer named Robert Hennig investigated these charges. Hennig found no evidence that Kuigoua had suffered discrimination because of his male gender and he was given a right-to-sue notice.

On March 5, 2020, Kuigoua sued the Veterans Department in state court on state statutory claims. This complaint asserted four causes of action and the factual allegations in this complaint cover about eight pages.

Kuigoua’s judicial complaint stated nothing about gender discrimination against males at the West Los Angeles facility. Now the site of the oppression was 60 miles north, in Lancaster. Neither was there mention of antagonist Manalo. The retaliation now was for complaining to Ancheta about harassment from Smith and Quintua: three people Kuigoua omitted from his Commission Form. The time frame was different: over the three-year interval from 2015 to 2018, rather than the three and a half months in 2018.

Defendant Veterans Department responded to Kuigoua’s lawsuit. The Department noted the lawsuit was about alleged events different from those Kuigoua alleged in his Commission Form. The Department moved for summary judgment on the basis Kuigoua had not exhausted his administrative remedies.

The trial court granted the Department’s motion. The court’s single-spaced eight-page statement of decision carefully applied the law to the disparity between Kuigoua’s factual allegations in his administrative and judicial complaints. Kuigoua appealed.

The Court of Appeal of the 2nd Appellate District affirmed the trial court in the published case of Kuigoua v. Dept. of Veteran Affairs -B323735 (April 2024).

The Court of Appeal said “Kuigoua loses this appeal because he changed horses in the middle of the stream. His agency complaint was one animal. On the far bank, however, his lawsuit emerged from the stream a different creature. Changing the facts denied the agency the opportunity to investigate the supposed wrongs Kuigoua made the focus of his judicial suit. The court rightly ruled Kuigoua failed to exhaust his administrative remedies. “

Employees like Kuigoua who wish to sue under the Fair Employment and Housing Act must exhaust the administrative remedy that statute provides. They do so by filing a complaint with the Department of Fair Employment and Housing. Filing this administrative complaint is a mandatory prerequisite to suing in court. (Guzman v. NBA Automotive, Inc. (2021) 68 Cal.App.5th 1109 at p. 1117; see Clark, supra, 162 Cal.App.5th at p. 308, fn. 21.)

Once the agency receives this complaint, it investigates the alleged unlawful practice and decides whether it can resolve the matter by conference, conciliation, and persuasion. If these measures fail, the agency may issue an accusation. If the agency decides against issuing an accusation, it issues a right-to-sue letter to the aggrieved person. (Guzman, supra, 68 Cal.App.5th at p. 1117.)

“Summary judgment is now recognized as a particularly suitable means to test the sufficiency of the plaintiff’s or defendant’s case.”