The Time To File A Failure-To-Promote Claim Begins When The Employee Knows Or Should Known Of The Decision To Promote Another

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Aug 19, 2021

Pamela Pollock is a customer service representative at Tri-Modal Distribution Services, Inc. (Tri-Modal), a freight shipping company.  In 2014, Tri-Modal’s executive vice-president, Michael Kelso, initiated a dating relationship with Pollock.  While Kelso wanted the relationship to become sexual, Pollock did not, so she ended the relationship in 2016. Subsequently, Pollock alleged that Tri-Modal and Kelso denied her a series of promotions, even though she was the most qualified candidate, and that her refusal to have sex with Kelso was the reason.

On April 18, 2018, Pollock filed an administrative complaint with California’s Department of Fair Employment and Housing (DFEH) alleging quid pro quo sexual harassment in violation of the Fair Employment and Housing Act (FEHA).  In her DFEH complaint, Pollock challenged the promotion of Leticia Gonzalez, among others.  As relevant to this appeal, Tri-Modal offered, and Gonzalez accepted, a promotion in March 2017, and the promotion took effect on May 1, 2017. There was no evidence as to whether or when Tri-Modal notified Pollock that she did not receive the promotion. There was also no evidence that Pollock knew or had reason to know that Gonzalez was offered the promotion and accepted it in March 2017.

At the time Pollock filed her DFEH complaint, the FEHA required employees seeking relief to file an administrative complaint with the DFEH within one year “from the date upon which the alleged unlawful practice . . . occurred.”  Pollock argued her failure to be promoted occurred on May 1, 2017, the date that Gonzalez began her promotion, so her April 2018 administrative complaint was timely.  Tri-Modal and Kelso argued, however, that its failure to promote Pollock “occurred” in March 2017 when Gonzalez accepted the promotion, so Pollock filed her complaint too late.

The trial court concluded that the failure to promote occurred in March 2017 when Gonzalez was offered and accepted the promotion.  Thus, the trial court found that Pollock’s claim was time-barred, and the Court of Appeal agreed.  The Court of Appeal then awarded costs on appeal to all of the defendants.  However, the court did not address whether Pollock’s underlying claim was “frivolous, unreasonable, or groundless when brought” or that she “continued to litigate after it clearly became so.”  After Pollock petitioned for a rehearing on the award of costs and the Court of Appeal denied her petition, the California Supreme Court granted review.

The California Supreme Court held that for a FEHA failure to promote a claim, the statute of limitations to file a DFEH complaint begins to run when an employee knows or reasonably should know of the employer’s refusal to promote the employee.  Although there was no evidence in this case when Pollack knew of Gonzalez’s promotion, Pollack’s legal papers in opposition to Kelso’s motion for summary judgment did not dispute that Gonzalez was offered and accepted the promotion in March 2017.

In addition, the Court held that the FEHA’s directive that a prevailing FEHA defendant “shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so” also applies to an award of costs on appeal.  The Court concluded the Court of Appeal erred in awarding costs on appeal to Tri-Modal and Kelso without first finding whether Pollock’s underlying claim was objectively groundless.

Pollock v. Tri-Modal Distribution Servs., Inc., 2021 WL 3137429 (Cal. July 26, 2021).


At the time of the alleged misconduct here, the FEHA provided that an administrative complaint needed to be filed with the DFEH within one year.  The California Legislature expanded that time to three years.  This case also demonstrates how important it is to carefully respond to alleged facts in a summary judgment motion.

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