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Statute Of Limitations For Failure To Promote Begins On Date Employee Is Told Promotion Decision
Bonnie Ducksworth and Pamela Pollock are customer service representatives at Tri-Modal Distribution Services (Tri-Modal). Both Ducksworth and Pollock applied for their positions at Tri-Modal through Scotts Labor Leasing Company, Inc. (Scotts), a staffing agency. Scotts hired Ducksworth and Pollock, and leased them to Tri-Modal in 1996 and 1997, respectively. In 2006, another staffing agency, Pacific Leasing, Inc. (Pacific), took over Scotts’ role for Ducksworth and Pollock.
Both Scotts and Pacific were responsible for tracking and processing payroll, health insurance, workers’ compensation, and other payments for employees leased to Tri-Modal. However, Scotts and Pacific were not involved in the day-to-day supervision of Ducksworth and Pollock. For example, Tri-Modal set their work schedules and provided them with their work assignments. The decision to give any employee leased by Scotts or Pacific to Tri-Modal a raise was made solely by Tri-Modal.
After failing to be promoted for decades, Ducksworth and Pollock sued Tri-Modal, Scotts, and Pacific for racial discrimination under the Fair Employment and Housing (FEHA) Act. Pollock also alleged sexual harassment against Tri-Modal and its executive vice president, Mike Kelso. Pollock alleged that after she ended a dating relationship with Kelso, he blocked her promotions. The trial court dismissed the racial discrimination claim against Scotts and Pacific because undisputed evidence showed that Tri-Modal solely made the decision to promote an employee. The trial court also dismissed Pollock’s sexual harassment claim against Kelso based on the statute of limitations. Ducksworth and Pollock appealed.
On appeal, the court affirmed the trial court’s decision to dismiss the racial discrimination claim against Scott and Pacific. The court noted that because they were not involved in the decisions Ducksworth and Pollack attacked, they could not be liable for discrimination.
The court also confirmed that the trial court correctly dismissed Kelso from the action. Under the FEHA at that time, an employee was first required to file a complaint with the Department of Fair Employment and Housing (DFEH) within one year from the alleged misconduct. Pollock filed her DFEH complaint on April 18, 2018, so she could only bring claims for conduct occurring after April 18, 2017. While the decision to promote another employee over Pollock was made in March 2017, Pollock alleged that her DFEH complaint was still timely because the promotion did not take effect until May 1, 2017.
The court disagreed. The court noted that based on the language of the FEHA, the statute of limitations for a failure to promote claim runs from when the employer tells the employee they have been given (or denied) a promotion. Accordingly, because alleged misconduct occurred before April 18, 2017, Pollock’s claim was barred by the statute of limitations.
Ducksworth v. Tri-Modal Distribution Services (2020) 47 Cal.App.5th 532, reh’g denied (Apr. 22, 2020).
It is important to carefully evaluate the statute of limitations for an employee alleging claims under the FEHA. This includes both the language of the statutes and the case law interpreting those laws. As of January 1, 2020, the time within which an employee must file a complaint with the DFEH has been expanded from one to three years from the date of the alleged discrimination. (Gov. Code § 12960 (e).)