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Whether the State Personnel Board finds that a public employee's discipline or termination was justified has little, if any, bearing on that employee's potential discrimination and retaliation claims under FEHA (Fair Employment and Housing Act). One of the recent cases discussing this issue is the Fifth District's decision in George v. Cal. Unempl. Insurance Appeals Board 179 Cal.App.4th (2009). In that case, the court noted that despite the fact that the service civil proceedings within SPB and the FEHA action seek to redress the same primary right - the right to maintain employment a certain work place, the law recognizes two distinct rights or interests at stake when civil service employee challenges discipline or termination on discriminatory or retaliatory grounds. While the primary right protected by the state civil service system is the right to continued employment, the primary right protected by FEHA is be free from discrimination and retaliation for engaging in a protected conduct. It was also held that state employees may pursue their claims of employment discrimination with either the SPB or DFEH or both. Ruiz v. Dept. of Corrections 77 Cal.App.4th 891 (2000).
The Board's responsibilities are directed at ensuring that state employment is based on merit, while FEHA was implemented to eliminate discrimination and vindicate civil rights in both private and public employment. These are distinctly different rights with different harms even though there may be overlap in the two statutory schemes. For this reason, there is no requirement that a state employee raise the FEHA issue at the SPB hearing.
