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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Holly Thomas Appointed to DFEH Position

Governor Jerry Brown recently announced his appointment of attorney Holly A. Thomas to be the new deputy director of executive programs at DFEH.

Thomas is certainly credentialed having been special counsel to the solicitor general at the New York Attorney General’s Office, among other things.

Here’s the text of Governor Brown’s announcement:

Holly A. Thomas, 36, of Brooklyn, New York, has been appointed deputy director of executive programs at the California Department of Fair Employment and Housing. Thomas has been special counsel to the solicitor general at the New York State Attorney General’s Office since 2015. She served as a senior attorney in the Appellate Section of the Civil Rights Division at the U.S. Department of Justice from 2010 to 2015 and was an assistant counsel at the National Association for the Advancement of Colored People (NAACP) Legal Defense and Educational Fund Inc. from 2005 to 2010, where she was a fellow with the Arthur Liman Public Interest Program from 2005 to 2006. Thomas served as a law clerk for the Honorable Kim McLane Wardlaw at the U.S. Court of Appeals, Ninth Circuit from 2004 to 2005. Thomas earned a Juris Doctor degree from Yale Law School. This position does not require Senate confirmation and the compensation is $133,008. Thomas is a Democrat.

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Los Angeles Verdict: $8.5 Million for Age and Gender Discrimination

Congratulations to Los Angeles attorney Maryann Gallagher for an $8.5 million verdict she got for her client in an age and gender discrimination case against B.E. Aerospace, Inc. on June 2, 2016.

The verdict included $7 million in punitive damages and $1.5 million in compensatory damages.

Plaintiff worked for B.E. Aerospace for 23 years and never received any negative performance evaluations. Toward the end of her tenure, plaintiff was directed to train a new 24 year old employee, who eventually took plaintiff’s job after plaintiff was fired because her position was “eliminated.” Typically, before this occurred, a newer and younger supervisor arrived. This newer and younger supervisor started in on plaintiff because of plaintiff’s age and gender.

Unfortunately this has become a common practice. I see it more and more.

Considering that California is an employment at will state, it still amazes me that many of these large employers, armed with armies of lawyers, will harass and lie to older employees it wants to get rid of. Most of these cases wouldn’t be worth filing if the employer treated the employee well. Most employees know they can be fired, but they can be fired with dignity. But these lawyered-up employers often make the mistake of thinking they have to come up with a reason to get rid of employees they’re tired of or are paying too much, so they cook up some reasons to “justify” a termination.

Stupid, stupid, stupid. Especially to treat a long-term dedicated employee like some kind of undesirable cretin and kicking him/her out the door.

Gee, what about treating the employee with dignity and respect? And if there’s a business reason to terminate an employee, especially a long-term employee, how about a generous severance package and a proper send away? How about a “thank you?”

I bet B.E. Aerospace now wishes it would have thought of that.

Check out this B.S. from B.E. Aerospace’s website:


B/E Aerospace is a leading manufacturer of aircraft interior products and solutions, and leading distributor of aerospace fasteners and consumables for the commercial business jet and military markets. A career here is beyond what you would expect in a job. (emphasis added!)

At B/E, your ideas, talents, and experiences reach beyond day-to-day duties. They are also used to shape a global organization. This is your opportunity to make a real difference each day and be a part of something bigger than any single individual. You can be a part of a global team that is always looking ahead.

Open the Door to Success.

We know the best view of B/E is from the inside. Come explore the pride, commitment, and value that a career at B/E Aerospace can bring to your professional experience. (I suggest allowing plaintiff to be the tour guide.)

What a joke!

I think the website should bear a prominent disclaimer. Here’s a suggestion:

Warning! Long-term dedicated employees are likely to have their reputations sullied and are subject to unceremonious termination when BE Aerospace determines the time is right. Applicants over 40 years old and women should consider this when applying.

Congratulations to Maryann Gallagher for her righteous victory.

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FEHA Attorney’s Fees: Sometimes Plaintiffs Must Pay!

When I evaluate a potential employment case, it’s always nice when there’s a cause of action under FEHA that provides for attorney’s fees. That gives plaintiff leverage in settlement discussions. Smart defense counsel will advise their clients that if plaintiff wins at trial, depending on the case, the attorney’s fees can sometimes dwarf the jury’s verdict. Especially if unwise defense counsel plays games and resists discovery requiring motions to compel, files a motion for summary judgment with hundreds of pages of exhibits that has no chance of prevailing, etc… all to simply increase billings and make it appear to defense counsel’s client that defense counsel is being “aggressive.”

But what happens if plaintiff loses in a case where it’s clear the client will lose? One of the FEHA myths is that plaintiff never has to pay defendant’s attorney’s fees, even when plaintiff loses. But that’s not the case – as the Second District Court of Appeal reminds us in a recent unpublished decision.

In this case plaintiff, a 31-year employee of Liberty Mutual, filed a lawsuit under FEHA alleging ethnic origin discrimination and retaliation along with other related causes of action after being terminated. Liberty Mutual filed a motion for summary judgment arguing in part that plaintiff’s DFEH administrative complaints were insufficient. Plaintiff then filed amended DFEH complaints, but the court said that in two of the three amended complaints, plaintiff made false allegations about the dates of the discrimination.

Well, the trial court ordered the FEHA causes of action stricken because plaintiff pursued them in bad faith. Plaintiff then tried to file her case in federal court, but apparently that didn’t go well.

So guess what? Defendant decided to file a motion for attorney’s fees under the prevailing party provision of FEHA—California Government Code § 12965(b). Smartly, Liberty Mutual only asked for fees for the time between the its motion for summary judgment and the dismissal of the FEHA causes of action, and only 5/8ths of its fees incurred during that time, since only 5 of the 8 causes of action were under FEHA.

So what did plaintiff do? Well, she didn’t argue that she pursued these claims in good faith or that the fees sought were excessive. Instead, she argued that the motion was premature since the court had not ordered summary judgment, the court had only stricken her FEHA claims, so, technically, Liberty Mutual was not a prevailing party.

But the court granted Liberty Mutual’s motion for attorney’s fees for $78,681 with payment stayed until the end of the lawsuit.

And then the lawsuit ended when the court granted summary judgment.

And plaintiff appealed, and lost. And now plaintiff owes Liberty Mutual’s lawyers $78,681 and Liberty Mutual’s costs on appeal.


The moral of this story for plaintiff’s attorneys and their clients is when you get a case that looked good but once discovery commences and things go south, don’t try to raise a sinking ship. Get out as fast as possible. You’ll be thankful to cut your losses, and so will your client. Because if you don’t, you won’t get paid and your client will paying your opposing counsel.

Dzhanikyan v. Liberty Mutual Ins. Co.
California Court of Appeal, Second Appellate District, Case No. B261113
June 15, 2016

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Summary Judgment Reversed: Disability Discrimination

California’s Fourth District Court of Appeal recently reversed a summary judgment for defendant employer in a lengthy opinion which made me wonder, “What was the trial judge thinking?”

In Moore v. Regents of the University of California, the court reversed summary judgment on five causes of action and sustained summary adjudication on only one cause of action.

Plaintiff sued her employer for disability discrimination, failure to accommodate and failure to engage in the interactive process, retaliation in violation of FEHA, retaliation and interference in violation of CFRA. The only claim plaintiff lost on was the retaliation claim under FEHA and that was only because the law changed after the events described in the complaint occurred, and the change in the law did not apply retroactively.

This is a fairly typical disability discrimination case in which an employee informs her employer that she has a medical condition and then the employer does everything it can to make the employee’s life difficult, eventually leading to a convenient RIF layoff. (That’s what they always say.)

I won’t get into all the details here, but this opinion does have a good discussion of pretext, and it’s definitely worth a read.

This is a good case because of the factual details and the court’s analysis. It’s a keeper, and a win for plaintiffs.

It also makes me wonder what the hell is going on at the Great Bastion of Progressivism, The University of California system. It seems almost a daily occurrence that some professor is sexually harassing a student or something. And they’re not even frat boys!

Even Mother Jones is wondering what the hell is going on. MJ even put together a list of alleged sexual improprieties!

It’s apparent after reading this case that disability discrimination is alive and well at the UC System, too, despite its own policies.

Moore v. Regents of the University of California
June 20, 2016

Posted in CFRA, Disability Discrimination, FEHA, Pretext | Comments Off on Summary Judgment Reversed: Disability Discrimination

Active California Ballot Initiatives

Here are the active ballot initiatives affecting California employment law generally. As a plaintiff’s attorney heretic on some issues, I like the Disability Access Litigation Initiative Statute which is necessary since some of my colleagues are in the business of filing crazy lawsuits against smaller businesses which really just amount to a shakedown and which contributes to the bad perception many have of lawyers.

Title and Summary Issued on January 25, 2016
Fiscal Impact Estimate Report

Andrew Rauch
Title and Summary Issued on January 7, 2016
Fiscal Impact Estimate Report

Shonda Roberts, Bruce Boyer
Title and Summary Issued on December 9, 2015
Fiscal Impact Estimate Report

Heidi Gallegos, Stephen Cox
Title and Summary Issued on December 9, 2015
Fiscal Impact Estimate Report

Heidi Gallegos, Stephen Cox
Title and Summary Issued on December 9, 2015
Fiscal Impact Estimate Report

Chuck Reed, Stephanie Gomes, Carl DeMaio, Pat Morris, Bill Kampe, Tom Tait
Title and Summary Issued on December 9, 2015
Fiscal Impact Estimate Report

Chuck Reed, Stephanie Gomes, Carl DeMaio, Pat Morris, Bill Kampe, Tom Tait
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Associational Disability Discrimination = Don’t Be An Ass

Large employers, armed with lawyers and lobbyists, complain about draconian legislation they say impedes their ability to conduct business profitably. As a plaintiff’s attorney heretic, I agree with them some of the time. But when you read cases like this, it makes me think some employers get what they deserve.

This is a story of a man whose son requires daily dialysis. He applied for a truck driver job and he told his prospective employer that he would need to work shifts that would enable him to administer his son’s dialysis. The employer, Dependable Highway Express, hired plaintiff and everything worked out well for both parties for about three years.

But then plaintiff got a new supervisor (and I might as well mention his name because he’s such an ass), Boldomero Munoz-Guillen, aka “Junior.” Junior refused to give plaintiff schedules that would accommodate plaintiff’s need to administer his son’s dialysis. Junior then fired plaintiff.

That’s why I think “ass” is a good name for Junior.

So plaintiff sued DHE for all of the relevant causes of action under FEHA, including wrongful termination in violation of public policy. And the trial court granted DHE’s motion for summary judgment! Just the skeleton facts outlined here should be enough to survive a motion for summary judgment.

Luckily, a Second Appellate District panel reversed the summary judgment.

This case is a good read because it discusses associational disability discrimination and as the Court notes, there aren’t many published cases dealing with it. Justice Grimes did “respectfully” dissent and some of Justice Grimes’ reasoning makes sense. But I think the tipping point was Junior’s cold-hearted treatment of plaintiff.

But that’s what happens to Big Business when they let the asses take over. They end up with more onerous legislation and case law which will keep their armies of lawyers busy. And all DHE had to do was recognize an ass and deal with him. And all of this wouldn’t have happened.

And now DHE gets to face the specter of a jury trial and answer to the people.

Castro-Ramirez v. Dependable Highway Express
April 4, 2016
246 Cal. App. 4th 180 (2016)

Posted in Associational Discrimination, FEHA | Comments Off on Associational Disability Discrimination = Don’t Be An Ass

Off Topic: In Defense of Judge Kozinski’s “Hortatory”

The Ninth Circuit Court of Appeals’ recent decision, Frost v. Gilbert, is certainly an entertaining read. It features a battle of sorts between Judge Alex Kozinski and a bunch of dissenters who say that a section of the opinion Kozinski authored is “merely hortatory.”

Hell, I didn’t even know what “hortatory” meant, so I had to look it up. It certainly looks like a delicious word from a bunch of dissenters.

According to Dictionary.com, “hortatory” means:

1. urging to some course of conduct or action; exhorting; encouraging:
a hortatory speech.

Well that’s boring. I thought it meant “bullshit” or something like that. But instead it means “urging some course of conduct or action.”

Sounds like what lawyers do every day in court. And I didn’t even know the meaning of the word! So now after work when my wife asks what I did that day, I will advise her that my work in court was “merely hortatory.”

Politicians engage in hortatory. The Donald, Ted and Hillary engage in hortatory every day when they ask voters to make sure and vote. And “Feeling the Bern” sounds pretty hortatory if you ask me.

The courts engage in hortatory. They complain of lack of funding and ask the legislature to give them more money. That’s merely hortatory. The courts encourage errant lawyers to turn over discovery. That’s merely hortatory. (Well maybe not merely if the hortatory is documented in an order.) The courts tell lawyers to “get to the point.” That’s hortatory. Lawyers ask the jury to convict or acquit – that’s just hortatory.

It’s all hortatory!

So what about Kozinski’s opinion encouraged the dissenting judges to open the pages of a yellowed thesaurus or to Google something or to ask a bookish clerk to find such a foreign word as hortatory?

Well Judge Kozinski was irritated by what appeared to be a hide-and-seek game being played by prosecutors who failed to turn over Brady material to the defense during a trial and even after the trial.

After reading the opinion, I found myself agreeing with Judge Kozinski. It sure looks to me like prosecutors were hiding from the defense plea agreements the prosecutors secured with a testifying witness. And Judge Kozinski did what good judges should do – he called out the prosecutors for their actions. And for this he was accused by the haughty hortatating (?) dissenters of hortatory!

I’m just glad to see that some judges are disturbed when prosecutors play games and I encourage other judges to follow Judge Kozinski’s example. But that’s just me being hortatory.

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