Metropolitan News-Enterprise


Wednesday, September 15, 2004


Page 3


C.A. Revives Claims of Age Discrimination Against Television Writers


By a MetNews Staff Writer


Los Angeles Superior Court Judge Charles M. McCoy made a series of legal errors in largely dismissing 23 separate age discrimination class action lawsuits filed by hundreds of television writers against 12 groups of related television networks, studios and production companies and 11 talent agencies, this district’s Court of Appeal ruled yesterday.

Among other things, McCoy ruled that the plaintiffs claims under the Fair Employment and Housing Act were barred by the dismissal of a previously filed federal court action. The FEHA provides that a class action may not be filed or maintained where the plaintiffs “have filed a civil class action in the federal courts alleging a comparable claim of employment discrimination” against the same defendants.

He also ruled that the FEHA’s one-year statute of limitations barred claims by writers who alleged they were deterred from applying for jobs or agency representation by a well-known policy of age discrimination, that the writers failed to plead sufficient facts to support individual prima facie cases of refusal to hire, and that statistics alleged in the federal complaint were inconsistent with the state court suits.

All those rulings were incorrect, Justice Paul Boland said in his opinion for Div. Eight.

But Boland said McCoy correctly ruled that amendments to the FEHA which became effective at the beginning of last year, adding age to the bases of discrimination constituting unlawful employment practices by employment agencies, do not apply retroactively and that the court had no authority under the state’s Unfair Competition Law to effectuate an injunctive decree through an award of classwide backpay.

While the language of the FEHA was ambiguous, Boland said, he concluded that the intent of Government Code Sec. 12965(b) was to bar state actions where a concurrent federal claim was being litigated, not to prevent plaintiffs from following a federal action with a state lawsuit.

Boland declared:

“[O]ur conclusion is that the provision is ambiguous, and the Legislature intended to forbid the filing or maintaining of a FEHA class action in state court if a comparable action has been filed and is pending in federal court—that is, duplicative parallel litigation. Obviously, to the extent federal class claims have been adjudicated, principles of res judicata and collateral estoppel will preclude further litigation in state courts.  However, we perceive no reason the Legislature would wish to forbid a FEHA class action on issues never adjudicated in federal court.”

When U.S. District Judge Stephen V. Wilson of the Central District of California dismissed the federal class action in 2002, he based his ruling on the federal Age Discrimination in Employment Act, Boland noted.

“We are cognizant of the fact that our interpretation of section 12965(b) effectively requires some duplication of judicial effort where successive class suits are filed,” he observed. “However, it does not, as the employers argue, give the writers, or anyone else, ‘a second bite at the class action apple in state court . . . .’ The writers have not yet had their first bite at the class action apple so far as FEHA is concerned.”

Boland said McCoy erred in relying on Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798 to find that the claims of the “deterred” writers were barred by the FEHA statute of limitations. Richards, he noted, held that in disability harassment cases involving an employer’s series of unlawful actions against an employee, the limitations period begins to run when the employee is on notice that further efforts to end his employer’s unlawful conduct will be futile.

The case is “entirely inapposite to a case of continuing systemic discrimination against a class,” the justice declared.

Nor, he said, should McCoy have rejected some of the claims of the deterred writers on the bases of allegations in the federal complaint that some older writers had been hired.

“[I]t would be premature to conclude—on the basis of 1997/1998 statistics alleged in the federal complaint, before any discovery has been conducted, and in the absence of any record whatsoever—that no class member, at the relief stage of class action proceedings, will be able to prove he or she would have applied for a position had it not been for a particular employer’s discriminatory practices,” the justice explained.

The case is Alch v. Superior Court (Time Warner Entertainment), B1645638.


Copyright 2004, Metropolitan News Company