Untimely Administrative Complaint Can Save an Agency from Liability if the Continuing Violation Doctrine Does Not Apply

By: Morin I. Jacob
California Public Agency Labor & Employment Blog, August 27, 2013

Many agencies have had the experience of being served with a complaint of harassment, discrimination and/or retaliation filed by an employee with the California Department of Fair Employment & Housing ("DFEH"). Filing such an administrative complaint is a prerequisite to suing in court for damages. There are deadlines associated with an employee's ability to bring administrative and court complaints. An untimely complaint can save an agency from liability – perhaps even where liability may otherwise exist.

Generally, to be timely, an employee must file a complaint alleging a violation of the Fair Employment & Housing Act ("FEHA") not later than one year with the DFEH after the alleged discrimination, harassment or retaliation occurred. Then, the employee has one year from the date of the DFEH's Right to Sue letter to bring suit in Superior Court. Often times, employees will file untimely complaints about conduct that occurred more than one year before the complaint was filed with the DFEH. If litigation ensues, a court will need to decide whether the employee brought his or her claim forward in a timely manner. If the answer to this question is "no," then the employee may then be barred from proceeding in court. Agencies should work with legal counsel to review any DFEH complaints to determine if they were timely filed under the applicable statutes.

In the recent case of Acuna v. San Diego Gas & Electric Co. (2013), the Court of Appeal addressed whether an employee's lawsuit was time barred because she had failed to file her lawsuit within one year after receiving her DFEH Right to Sue letter.

Esperanza Acuna, a Latina, began working for San Diego Gas & Electric Company (SDG&E) in 1979. Her duties involved "timekeeping" responsibilities. In 2002, her supervisor allegedly made condescending comments about her Hispanic background and falsely accused her of making data entry errors after she returned from medical leave caused by carpal tunnel syndrome. Acuna made a harassment and discrimination claim to her employer. She returned to work after three months, but went out on stress leave one week later due to alleged retaliation for making the harassment and discrimination complaint. A doctor evaluated Acuna and opined that she had suffered a temporary psychological injury due to her supervisor's conduct.

Acuna received no response from SDG&E regarding her complaint of harassment and discrimination. She then filed a complaint with the DFEH on March 6, 2006, alleging race discrimination, harassment and retaliation for filing a workers' compensation claim. The DFEH issued her a Right To Sue letter on March 27, 2006. Acuna filed a second DFEH complaint on February 23, 2007, alleging disability discrimination and failure to provide reasonable accommodation. The DFEH issued her a Right To Sue letter on February 19, 2008. Acuna filed her third DFEH complaint on October 23, 2008, alleging further discrimination, harassment, and retaliation. The DFEH issued her a Right To Sue letter on November 7, 2008.

Acuna then filed a complaint in Superior Court on November 5, 2009, alleging various claims, including FEHA discrimination and retaliation based on conduct dating back to her first DFEH claim in 2006. SDG&E successfully demurred to the complaint on the ground that the FEHA causes of action were barred by the applicable statutes of limitations. Acuna appealed, and the Court of Appeal affirmed in part and reversed in part.

Acuna argued that her lawsuit was timely because it was filed within one year of her most recent Right To Sue notice and the conduct that occurred outside of the one year limitations period was properly part of her lawsuit under the "continuing violation" doctrine. The Court of Appeal rejected Acuna's argument. The Court explained that the "continuing violation" doctrine tolls the one-year statute of limitations during the time the employee and the employer are engaged in efforts to resolve the employer's claimed wrongful conduct. The tolling of the statute of limitations ends when the employer's decision becomes permanent. The Court determined that Acuna's disability discrimination, failure to accommodate, and race discrimination claims were not saved by the continuing violations doctrine because the employer's actions surrounding her requests for accommodation had gained the requisite level of permanence after the employer refused to accommodate her, and because Acuna did not allege any continuing racial discrimination or harassment after 2006, a date outside of the statute of limitations.

However, the Court of Appeal held that the trial court erred when it sustained SDG&E's demurrer to Acuna's retaliation cause of action. Acuna was terminated in July 2008. She filed a DFEH complaint less than four months later and filed suit less than one year after receiving her Right To Sue notice. Acuna's retaliation claim included an allegation that her termination was motivated by retaliation because of her workers' compensation claims, her claimed disability, and the filing of her first two DFEH complaints. While SDG&E argued that Acuna's retaliation claim was untimely because the alleged retaliatory motives for the termination arose from events in 2005 and 2006, the Court held that the statutory deadline is not triggered by the motives. Rather, the one year period for filing a DFEH claim challenging a termination accrues at the time the adverse action is actually taken against the employee. Because Acuna filed her DFEH retaliation claim in October 2008, the Court held that she was entitled to pursue her retaliation claim that might have occurred from October 2007 onward, regardless of whether SDG&E's prior wrongful acts were independently actionable and timely alleged.

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