FEHA and Equitable Tolling

A California plaintiff files a racial discrimination complaint with the EEOC alleging racial discrimination against his employer. The EEOC then files a copy of the complaint with the DFEH under their work-sharing agreement. DFEH issues an immediate right-to-sue letter which gives plaintiff the right to file a lawsuit in state court within one year. EEOC investigates the claim and a couple of years later issues a letter of determination stating there is reasonable cause to believe plaintiff suffered from racial discrimination. Then, a few months later, EEOC sends out its own right-to-sue letter after the case doesn’t settle. Ninety-seven days later, plaintiff sues his employer in California Superior Court.

Did plaintiff miss the FEHA statute of limitations? No. Even though plaintiff missed the federal 90-day limitations period after receipt of the EEOC right-to-sue letter, that was irrelevant. What is relevant, is plaintiff’s limitations period under FEHA was tolled during the time in which EEOC was investigating his claim. So the statute did not start running on plaintiff’s FEHA claims until the EEOC issued its determination letter.

This is called “equitable tolling.” Having just dealt with equitable tolling in a nightmare federal habeas corpus case, I know all about it!

(The justifications for equitable tolling in the FEHA context and the federal AEDPA law are essentially¬† the same, in case you’re wondering.)

Anyway, this is a relatively common fact pattern and I am not surprised at the court’s decision in applying equitable tolling.

But what did surprise me was how the case got to the Court of Appeal. And I won’t go through all of the sordid details here, but it involves demurrers, a petition for writ of mandate,¬† an alternative writ of mandate, new orders, hearings, motions for consideration, well…it is simply crazy and a waste of time. I think the Court of Appeal finally got it right, but procedurally it was a nightmare which could have been avoided.

Mitchell v. State Dept. of Public Health
Court of Appeal of California, Second Appellate District
July 27, 2016

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