Metropolitan News-Enterprise


Thursday, August 16, 2007


Page 3


S.C. to Decide Whether Time to File FEHA Claims Subject to Equitable Tolling


By a MetNews Staff Writer


The California Supreme Court yesterday agreed to decide whether the  one-year limitations period for filing administrative claims under the Fair Employment and Housing Act is subject to equitable tolling.

The justices, at their weekly conference in San Francisco, voted 6-1 to review the ruling of Div. Five of this district’s Court of Appeal in McDonald v. Antelope Valley Community College District, B188077.

Only Justice Joyce L. Kennard did not vote to hear the case.

Div. Five, in an opinion by Presiding Justice Paul A. Turner, concluded in June, based on legislative history, that lawmakers did not intend to bar plaintiffs from claiming that traditional equitable considerations excuse the failure to file within the one-year period.

The panel concluded that one of three plaintiffs claiming to be victims of a longstanding pattern of racial discrimination at Antelope Valley Community College had alleged facts putting him within the one-year limitations period and that another had a triable issue with respect to her contention that the one-year period was tolled while she pursued remedies within the college personnel system.

The third plaintiff, Turner said, has no case because none of the allegations in the Los Angeles Superior Court complaint were encompassed by her administrative claim.

The Supreme Court will only review the equitable tolling issue raised by plaintiff Sylvia Brown.

Brown, a library technician’s assistant, claims that the college denied her promotions and other opportunities based on race and sex as part of a 70-year history of discrimination, and retaliated against her for complaining about it.

She alleges that she was denied an interview for a promotion because she is black, and despite the fact that her union contract required the college to interview all in-house applicants who met the minimum qualifications, and that when the person who got the job was later forced to resign over performance issues, she was again denied an interview for the job, which went to a non-black candidate.

The latter denial, she alleged, was also in retaliation for her having filed a complaint about the earlier denial with the Equal Employment Opportunity Commission.

Los Angeles Superior Court Judge William Highberger granted summary judgment to the college. The Court of Appeal, however, said there was a triable issue of fact with respect to Brown’s claim of equitable tolling.

The high court left standing the Court of Appeal’s ruling that the claims of another plaintiff, John McDonald, were not time-barred as a matter of law. The panel explained that McDonald had alleged a series of discriminatory events, and that since he had alleged at least one FEHA violation occurring less than a year prior to the filing of his claim with the Fair Employment and Housing Commission, summary judgment should have been denied.

As to Brown, Turner explained, it is clear that all of the alleged actionable conduct occurred more than a year prior to Oct. 11, 2002, the date of her FEHC filing. Brown also claims, however, that for the entire period between the dates of the discriminatory actions and the filing of the FEHC claim, other than an eight-month period, she was pursuing internal remedies with school administrators or the elected college board, the presiding justice noted.

The college, citing the legal maxim inclusio unius est exclusio alterius, contended that because FEHA includes specific exceptions to the one-year limitation, none of which apply in Brown’s case, the application of any other exception, such as equitable tolling, is precluded.

Turner, however, concluded that the plaintiff has the better argument on the issue, for six reasons:

•Unlike other statutes of limitations, there is nothing in FEHA that expressly precludes equitable tolling;

•The statute has a long legislative history, and nothing in it suggests that lawmakers intended to preclude equitable tolling;

•A Supreme Court case cited by the college, holding that a particular statute of limitations precludes equitable tolling, even in the absence of specific language to that effect, involved a 10-year period, whereas other cases have applied equitable tolling to causes of action subject to shorter statutes of limitations;

•The doctrine of equitable tolling was sufficiently well-established when FEHA was enacted to infer that if the Legislature did not intend it to apply, it would have specifically said so;

•The “inclusio unius” maxim has always been subject to exceptions, including where it would violate clear legislative intent or established principles of law; and

•FEHA requires that the limitations period be liberally construed in line with the preference for resolving claims on the merits.

The case was briefed by Gregory W. Smith, Christopher Brizzolara, and Bradley C. Gage for the plaintiffs and by Steven J. Rothans, Jill Williams Babington, and Justin Reade Sarno for the college.


Copyright 2007, Metropolitan News Company