Time to File FEHA Claims Subject to Equitable Tolling

Monday, June 4, 2007

Page 1

Time to File FEHA Claims Subject to Equitable Tolling—C.A.

By KENNETH OFGANG, Staff Writer

The one-year limitation period for filing administrative claims under the Fair Employment and Housing Act is subject to equitable tolling, the Court of Appeal for this district ruled Friday.

Div. Five, in an opinion by Presiding Justice Paul A. Turner, said that while the issue is close, legislative history suggests 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.

Plaintiffs John McDonald, Sylvia Brown, and Sallie Stryker claim that the college denied them promotions and other opportunities based on race—and in Brown’s and Stryker’s cases sex—as part of a 70-year history of discrimination, and retaliated against them for complaining about it.

McDonald has worked at the college since 1978 and has been an adjunct professor of African American history and literature since 1979. He claims to have been the victim of a pattern of discrimination that included being falsely accused of embezzlement in the 1980s—-he was acquitted by a jury—; failing to promote him to positions for which he applied and was qualified, in one case leaving the post unfilled and in two others hiring a less-qualified non-black candidate; removing him and other blacks from a committee appointed to make recommendations for faculty hiring, which would have otherwise had a black majority.

He also claims that in retaliation for his efforts to end racial discrimination at the college, he was reprimanded on a false charge of absenteeism—he denies any absences not covered by the college’s leave policy—and was made the subject of a widely distributed e-mail comparing him to the Sept. 11 terrorists, and that the administration refused to investigate the incident.

Brown, a library technician’s assistant, claims that she was denied an interview for a promotion due to her race, 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.

Stryker, an adjunct sociology professor, said the college discriminated against her by closing down a grant-funded minority faculty recruitment program that she had headed, then reopening it under the leadership of a white woman, and by denying her a permanent position.

That denial, she alleged, was in violation of state law requiring that a permanent position be offered to an adjunct faculty member carrying a 60 percent or higher teaching load for three consecutive semesters, and in spite of the fact that 13 non-black teachers who met the 60 percent requirement were given permanent status.

When she later applied again for a permanent position, she claimed, she was again passed over, and a white male was hired. That occurred, she said, after McDonald and two other blacks were removed from the hiring committee.

Los Angeles Superior Court Judge William Highberger granted summary judgment to the college as to all three plaintiffs, ruling that their administrative complaints were not timely filed. The appellate panel, however, found that there were triable issues of fact with respect to McDonald and Brown.

Turner explained that McDonald had alleged a series of discriminatory events, culminating in retaliation just prior to his filing of the administrative claim. 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, the presiding justice wrote, summary judgment should have been denied, and the timeliness of his other allegations need not be presently determined.

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 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 “inclusion unius” maxim has always been subject to exceptions, including where it would violate clear legislative intent or established principles of law; and the issue that “clinches the issue for us,” Turner said:

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

Turner went on to say that while Brown has a triable claim based on equitable tolling, Stryker does not, because Stryker’s allegations in the Superior Court action differed from her administrative claim, which was based on an alleged failure to promote 18 months before she filed suit.

The case was litigated on appeal by Gregory W. Smith, Christopher Brizzolara, and Bradley C. Gage for the plaintiffs and by Steven J. Rothans and Justin Reade Sarno for the college.

The case is McDonald v. Antelope Valley Community College District, B188077.