Opinion
NO. 99-CV-1297-RHW.
January 12, 2006
ORDER GRANTING IN PART, DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendants' Motion for Summary Judgment, or in the Alternative Partial Summary Judgment (Ct. Rec. 148); Plaintiff's Objections to Evidence in Support of Defendants' Motion for Summary Judgment (Ct. Rec. 158); Plaintiff's Request for Judicial Notice (Ct. Rec. 157); and Defendant Circuit City's Objections to Evidence Offered by Plaintiff re: Motion Response (Ct. Rec. 160). On December 20, 2005, the Court held a telephonic hearing in the above-captioned matter. Plaintiff was represented by Michael H. Crosby and Defendants were represented by Joseph Connaughton.
PROCEDURAL HISTORY
Catherine Ingle's complaint alleges that the Defendants committed violations of Title VII and California state law, California Government Code § 12940, et seq., through their sexual harassment, failure to prevent harassment, unlawful employment discrimination, retaliation, and failure to accommodate her physical handicap. The case was initiated in the Southern District of California before Judge Schwartz in June 1999. Defendant filed a Petition to Compel Arbitration based upon a Dispute Resolution Agreement ("DRA") on July 16, 1999. The Petition was denied by Judge Schwartz on August 22, 1999, based upon Duffield v. Roberts Stephenson Co., 144 F.3d 1182 (9th Cir. 1998), which held that employers could not compel employees to arbitrate their Title VII claims as a condition of employment. Circuit City appealed the Order denying the motion to compel arbitration and in May 2003 a three-judge panel, in Ingle v. Circuit City, 328 F.3d 1165 (9th Cir. 2003), affirmed Judge Schwartz's decision on the basis that the DRA was unconscionable under California contract law. Circuit City did not file a motion for rehearing en banc; instead it filed a petition for writ of certiorari. On January 26, 2004, the Supreme Court denied Circuit City's petition for writ of certiorari.
Plaintiff states seven claims for relief: (1) harassment and discrimination on the basis of gender in violation of Cal. Gov. Code § 12940(j) (formerly (h)); (2) failure to take all reasonable steps necessary to prevent discrimination in violation of Cal. Gov. Code § 12940(k) (formerly (i)); (3) discrimination in employment in violation of Cal. Gov. Code § 12940(a); (4) retaliation in violation of Cal. Gov. Code § 12940(h) (formerly (f)); (5) failure to accommodate a physical handicap in violation of Cal. Gov. Code § 12940(m) (formerly (k)); (6) discrimination and harassment in employment in violation of 42 U.S.C. § 2000e; and (7) retaliation in violation of 42 U.S.C. § 2000e.
Circuit City then filed a Renewed Petition to Compel Arbitration (Ct. Rec. 79). In response to Defendant's Renewed Petition, Plaintiffs filed a Rule 11 Motion for Sanctions Against Rex Darrell Berry, Esq., Livingston Mattesich and Circuit City alleging that the Renewed Petition was frivolous and was filed for the purpose of oppressing the Plaintiff. The Court denied Defendants' Motion to Compel Arbitration and Plaintiff's Motion for Sanctions (Ct. Rec. 99). Defendants appealed once again to the Ninth Circuit, and Plaintiff moved for sanctions. The Circuit Court upheld this Court's order denying Defendants' Motion to Compel Arbitration based on the law of the case, and it granted Plaintiff's request for sanctions under 28 U.S.C. §§ 1912 1927 and FAP 38. Ingle v. Circuit City, 408 F.3d 592, 595-96 (9th Cir. 2005).
FACTS
The following facts are undisputed unless otherwise noted.
I. Plaintiff's Administrative Filings
Plaintiff left active employment with Circuit City in March 1998 due to work-related injuries and stress. Ms. Ingle filed her first complaint with the California Department of Fair Employment and Housing ("DFEH") on April 17, 1998. In this complaint, Plaintiff states she was harassed, denied accommodation, and forced to return to a hostile work environment due to retaliation and discrimination on the basis of sex, religion, and physical disability between November 1997 and the end of March 1998. Plaintiff received a right-to-sue letter from DFEH on April 21, 1998, which informed her that any civil action resulting from her allegations "must be filed within one year from the date of this letter." The letter also stated that if Plaintiff wants "a federal notice of Right-To-Sue, [Plaintiff] must visit the U.S. Equal Employment Opportunity Commission (EEOC) to file a complaint within 30 days of receipt of this DFEH Notice of Case Closure or within 300 days of the alleged discriminatory act, whichever is earlier."
Plaintiff filed a lawsuit in federal district court on February 2, 1999, alleging the same first five claims for relief that she alleges in this action. (Ex. 1, Case No. 99-CV-0181J-JFS). Defendants filed a Motion to Dismiss based on lack of diversity or federal question jurisdiction. In response, Plaintiff filed a First Amended Complaint, adding the sixth and seventh causes of action (under 42 U.S.C. § 2000e) on March 10, 1999. On April 22, 1999, Defendants again filed a Motion to Dismiss arguing that Plaintiff failed to exhaust her administrative remedies for her Title VII claims. In an order filed May 24, 1999, Judge Jones dismissed the suit for failure to exhaust and lack of subject matter jurisdiction. (Ex. 3). The court dismissed Plaintiff's Title VII claims because she had not exhausted her administrative remedies and dismissed the remaining state law claims because the court no longer had federal question jurisdiction.
Meanwhile, on May 5, 1999, Plaintiff filed another claim with DFEH, stating she was fired on January 12, 1999, because of her sex and physical disability and in retaliation for filing her earlier claim. In the space available for listing the particulars of the offensive conduct, Plaintiff stated that on January 12, 1999 she was fired by James Chavarria because of her sex, physical disability, and in retaliation for filing complaints.
On the same day, Ms. Ingle filed a charge with the Equal Employment Opportunity Commission ("EEOC"). In this complaint, Plaintiff checked boxes indicating she suffered discrimination on the basis of her sex and disability. In particular, Plaintiff claimed she was subjected to harassment on a continuing basis and denied reasonable accommodation and transfer, in addition to being discharged on January 12, 1999. On May 6, 1999, Plaintiff received Right-to-Sue notices from both the DFEH and the EEOC. Plaintiff filed the present suit with this Court on June 21, 1999, just under a month from the date her original complaint was dismissed.
II. Pre-April 1998 Events
As mentioned above, Plaintiff actively worked at Circuit City until the end of March 1998. Defendant does not dispute the basic facts Plaintiff alleges in her response memorandum regarding the events leading up to her extended leave. These facts are supported by Plaintiff's Declaration and other exhibits.
Plaintiff was employed initially at the Circuit City store in Carmel Valley, California, and her husband was employed at the Circuit City store in Escondido, California. While still employed at Carmel Valley, Plaintiff engaged in sexual relations with Keith Anderson, who was her husband's supervisor. After this encounter, in September 1997, Mr. Ingle was fired, and Plaintiff requested a transfer to the Escondido store to be closer to her home. Plaintiff states she attempted to break off contact with Mr. Anderson, but that he began "acting possessively of me" at this time — sending her flowers with inappropriate notes, calling her at work repeatedly, calling her at home, and driving to her home uninvited, among other things.
On December 11, 1997, Plaintiff suffered an injury to her lower back while at work. She saw Dr. Arbenz on December 17, 1997, and he imposed work limitations due to her injury. Plaintiff was compelled to work long hours after her injury in spite of her doctor's limitations. Mr. Anderson and his supervisor, Eric Gibbs, both refused her requests for leniency to accommodate her physical injuries. Because of this, Plaintiff placed a call to Circuit City's "cool line," which is a telephone line dedicated to employee's concerns, to complain about her treatment.
Plaintiff maintains that Mr. Anderson continued his harassment of her throughout this period, and in March 1998 she met with Mr. Gibbs to report her complaints and request relief. Her meeting with Mr. Gibbs lasted approximately five hours and allegedly included some inappropriate sexual comments from Mr. Gibbs. The harassing comments and behavior continued, and Mr. Anderson continued to schedule Plaintiff to work over 40 hours per week through March 1998. Finally, Plaintiff contacted regional supervisor George Liverman, who directed her to James Chavarria, a Human Resources Officer. Mr. Gibbs and Mr. Anderson were aware of Plaintiff's call to the "cool line" and of her conversation with Mr. Liverman. Mr. Gibbs and Mr. Anderson expressed their displeasure with Plaintiff for getting them in trouble.
Plaintiff reports Mr. Gibbs made at least two inappropriate comments to her. During her 5-hour meeting with him, Plaintiff states Mr. Gibbs made sexual and racial remarks toward her such as "I knew it . . . I knew you liked black guys." Plaintiff also states that Mr. Gibbs told her after finding out about her report to Mr. Liverman that "you would like it between two black men, wouldn't you . . . you're that kind of girl." Additionally, Plaintiff reports Mr. Gibbs made an inappropriate sexual facial gesture when she was drinking out of her water bottle indicating he was imagining her engaging in oral sex. Plaintiff is a white female, and Mr. Gibbs and Mr. Anderson are African American men.
Mr. Chavarria told Plaintiff to call in sick to work to avoid the harassment and stress. Circuit City terminated both Mr. Anderson and Mr. Gibbs soon after Plaintiff spoke with Mr. Liverman. Plaintiff reports receiving threatening phone calls almost immediately after leaving the store on her leave of absence, the first of which saying "Stop what you're doing now . . . you're dead." Plaintiff states she was informed and she believes this call was made at the behest of Mr. Gibbs or Mr. Anderson or both, and she informed Circuit City of the threat through Mr. Chavarria. Plaintiff also experienced hostility from her former co-workers at the Escondido store when she returned to receive her paycheck.
III. Post-April 1998 Events
Plaintiff claims that she got the impression that Mr. Gibbs, Mr. Anderson, and others had poisoned the atmosphere of the San Diego County Circuit City stores against her after she began her leave of absence. She states that in spite of this, Circuit City ordered her to return to work at the Vista, California store, which was managed by a friend of Mr. Gibbs', Maria Antos. Plaintiff complains that this request to return to work and other calls like it came late the night before she was asked to report to work.
Plaintiff's doctor declared her medically unable to return to work and she informed Circuit City. Plaintiff saw several doctors between April and December 1998, and all of their reports indicate that Plaintiff should not return to the hostile environments of Circuit City stores in Escondido or Vista.
Plaintiff claims the following acts of harassment and retaliation against her after she began her medical leave:
• Circuit City made night-time calls, mostly through Mr. Chavarria, ordering her to return to work after she informed them that her counselor had advised her not to return to the particular store.
• Circuit City withheld payment of Plaintiff's sick pay for four weeks after the check for such benefits had been cut according to the date on the check.
• Circuit City failed for at least five months to submit disability information to the insurer of Plaintiff's "Charge-Guard Plus" account, which was an account issued and administered by First North American National Bank ("FNANB") and was a wholly-owned subsidiary of Circuit City. Plaintiff claims she gave her disability information to Mr. Anderson in January 1998. Circuit City also received reports from Plaintiff's doctors, chosen by Circuit City, and it failed to remedy the error.
• This failure resulted in a series of "threatening" letters from FNANB and false credit reports that impaired Plaintiff's credit and the credit of her cosigner. Plaintiff tried on multiple occasions to straighten out the bank, Circuit City, and the credit agencies. Plaintiff claims this inaccurate information was on her credit report for years.
• FNANB also incorrectly billed and charged Plaintiff and her co-signer on at least two occasions.
Plaintiff received a letter on January 12, 1999, from Circuit City informing her that her employment was terminated due to a company-wide policy that calls for termination of an employee if he or she has been out of work for more than six months. Plaintiff contends that she would have returned to work had she been given an opportunity to go to any store other than Vista or Escondido.
STANDARD OF REVIEW
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). There is no genuine issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial," then the trial court should grant the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When considering a motion for summary judgment, a court may neither weigh the evidence nor assess credibility; instead, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
DISCUSSION
I. Defendant Circuit City's Motion for Summary Judgment
Many of Plaintiff's claims center on activities that occurred during the period of her active employment at Circuit City. Defendants argue these claims are time-barred due to the statute of limitation. Defendant contends Plaintiff's remaining claims should be dismissed as a matter of law because she has submitted insufficient evidence of unlawfully-motivated conduct. Plaintiff's claims arise under both federal and state laws against discrimination, i.e., Title VII and California's Fair Employment and Housing Act ("FEHA"). Both the Ninth Circuit and California courts have held that Title VII is the federal counterpart to FEHA, and that courts "may look to federal authority regarding Title VII and similar civil rights statutes when interpreting analogous statutory provisions of FEHA." Rodriguez v. Airborne Express, 265 F.3d 890, 896 n. 4 (9th Cir. 2001), citing, e.g., Yurick v. Superior Court, 209 Cal. App. 3d 1116, 1121, 257 Cal. Rptr. 665 (1989).
A. Statute of Limitations and Exhaustion of Remedies
To bring a civil action under FEHA, the employee must exhaust the administrative remedies provided by law. Rodriguez, 265 F.3d at 896; Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 63, 105 Cal. Rptr. 2d 652 (2000). Exhaustion requires "filing a written charge with DFEH within one year of the alleged unlawful employment discrimination, and obtaining notice from DFEH of the right to sue." Rodriguez, 265 F.3d at 896. "The scope of the written administrative charge defines the permissible scope of the subsequent civil action. Allegations in the civil complaint that fall outside of the scope of the administrative charge are barred for failure to exhaust." Rodriguez, 265 F.3d at 897.
Furthermore, after the issuance of a right to sue notice from DFEH, a party has one year in which to file a civil action. Cal. Gov. Code § 12965(b). Should the party fail to file suit within a year of receiving the right-to-sue notice, the action is time-barred. See Downs v. Dep't Water Power, 58 Cal. App. 4th 1093, 1099, 68 Cal. Rptr. 2d 590 (1997) (explaining that Government Code section 12965(b) "provides that an action for violation of the FEHA must be filed within one year of receipt of a right-to-sue letter from the DFEH").
Similarly, to establish federal subject matter jurisdiction over Title VII claims, a plaintiff is required to exhaust his administrative remedies before filing a complaint. Lyons v. England, 307 F.3d 1092, 1103-04 (9th Cir. 2002). Under 42 U.S.C. § 2000e-5, plaintiffs cannot seek relief under 42 U.S.C. § 2000e-5(a) until they have filed a claim with the state or local authority and 60 days have passed, unless such proceedings have been earlier terminated. Moreover, all charges must be filed with the EEOC within 300 days after the alleged unlawful employment practice occurred. In Mohasco Corp. v. Silver, the Supreme Court held that the practical effect of the above provisions is, in states with fair employment practices agencies over one year old, to render untimely any charge originally filed with the EEOC more than 240 days after the act complained of (since the remaining 60 days is needed to provide the state authority with an opportunity to adjudicate the charges), unless the state agency actually disposes of the referred charge before a total of 300 days has elapsed. 447 U.S. 807, 814 n. 16 (1980).
Indeed, failure to exhaust is why Plaintiff's original complaint was dismissed.
In California, DFEH has authority to grant relief from unlawful employment practices, is a qualifying "state or local authority" under 42 U.S.C. § 2000e-5(c), and is more than one year old. See E.E.O.C. v. Dinuba Medical Clinic, 222 F.3d 580, 585 (9th Cir. 2000) (discussing the worksharing agreement between the EEOC and the DFEH).
Defendants argue that Plaintiff's claims relating to the discrimination, harassment, and retaliation that allegedly occurred during her active employment at Circuit City, i.e., before April 1998, should be dismissed because they are time-barred. Plaintiff received her first right-to-sue notice relating to events before April 1998 from DFEH on April 21, 1998. She filed this suit on June 21, 1999, 14 months later. Additionally, Defendants state that Plaintiff's federal claims relating to this time period are barred because she did not file her complaint with the EEOC within 300 days of the occurrence of the complained-of acts. Plaintiff ceased actively working at Circuit City in March 1998, and she filed her EEOC charge on May 5, 1999, over 13 months later.
However, Plaintiff's failure to adhere to the statutory requirements of exhaustion does not end the inquiry as to her claims regarding pre-April 1998 activities. "The exhaustion requirement is akin to a statute of limitations and is subject to waiver, equitable estoppel, and equitable tolling." Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003). "The fundamental purpose underlying statutes of limitations is to protect defendants from having to defend stale claims by providing notice in time to prepare a fair defense on the merits. A second policy underlying the statutes is to require plaintiffs to diligently pursue their claims." Downs, 58 Cal. App. 4th at 1099-1100 (internal citation omitted); see also Addison v. State, 21 Cal.3d 313, 317 (1978). Equitable estoppel and equitable tolling are two distinct forms of relief from statutes of limitation. "Equitable estoppel focuses on the defendant's wrongful actions preventing the plaintiff from asserting his claim." Leong, 347 F.3d at 1123. "Equitable tolling focuses on a plaintiff's excusable ignorance and lack of prejudice to the defendant." Id. Here, Plaintiff argues that equitable tolling should apply, thus excusing her failure to timely file her charges and/or her complaint.
i. Equitable Tolling of Plaintiff's FEHA Claims
The equitable tolling doctrine should be applied "when defendants would not be prejudiced and plaintiffs, who had several legal remedies, pursued one such remedy reasonably and in good faith." Downs, 58 Cal. App. 4th at 1100. The one-year time limit imposed on parties to file suit after receiving a right-to-sue notice from DFEH is subject to equitable tolling regardless of whether it is construed as a procedural statute of limitation or "as a condition on a substantive right which must be fulfilled as a prerequisite to filing an action." Id. at 1101 n. 3.
"Three factors determine whether the statute of limitations is equitably tolled in a particular case: (1) timely notice to defendants in filing the first claim; (2) lack of prejudice to defendants in gathering evidence to defend against the second claim; and (3) good faith and reasonable conduct by plaintiffs in filing the second claim." Id. at 1100. In Downs, the court held that the one-year limit on filing suit after receiving a DFEH right-to-sue noticed is equitably tolled when the claimant (1) timely files charges concurrently with the DFEH and the EEOC, (2) the DFEH defers the investigation of the charge to the EEOC under a work-sharing agreement, (3) the DFEH issues a notice of right to sue upon deferral, and (4) the claimant does not file suit until after the issuance of the EEOC right-to-sue notice. Id. at 1102.
Plaintiff asserts that the holding in Downs is applicable here because her original suit was timely filed, Defendants were named in both suits and involved the same causes of action, and Plaintiff acted diligently and in good faith. Defendants counter that the reasoning in Downs only applies where the timely pursuit of one claim would require the sequential filing of another, duplicative claim.
Defendants assert that Plaintiff is attempting to relate her June 1999 lawsuit back to her February 1999 lawsuit, and that there can be no tolling or relating back in such a situation. In support, Defendants cite to cases out of the Seventh and Third Circuits for the proposition that "if a suit is dismissed without prejudice, then the tolling effect of the suit is wiped out and the statute of limitations is deemed to have continued running from whenever the cause of action accrued, without interruption by that filing." Elmore v. Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000); see also Brennan v. Kulick, 407 F.3d 603, 606 (3d Cir. 2005) (stating that "the dismissal of a complaint without prejudice after the statute of limitations has run forecloses the plaintiff's ability to remedy the deficiency underlying the dismissal and refile the complaint. In these circumstances, the order dismissing the complaint without prejudice is considered a final and appealable order.").
The Ninth Circuit addressed the issue of relation back in Fern v. United States, 213 F.2d 674 (9th Cir. 1954). This case involved a party that filed a "second amended complaint" without leave of the court or the opposing party after dismissal of its first complaint on the ground that the court lacked jurisdiction. Id. at 675. The plaintiff's first complaint was filed on December 27, 1949, and the second amended complaint was filed on July 14, 1952. Id. at 677. The Ninth Circuit found that the plaintiff's second amended complaint was actually a new action, and that the new action was barred by the statute of limitation, thus rejecting the plaintiff's argument for equitable tolling. Id. at 676-77.
The case at hand is distinguishable from Fern. Here, Plaintiff filed her second suit within four weeks of the dismissal of her first, giving Plaintiff a better argument that she acted diligently and in good faith in pursuit of her claims. However, Plaintiff's second suit was obviously a "new action" in that it was assigned a new case number and to a different judge. There is authority that argues against applying equitable tolling in a situation such as this. The Ninth Circuit has held that "once a claimant retains counsel, tolling ceases because she has gained the means of knowledge of her rights and can be charged with constructive knowledge of the law's requirements." Leong, 347 F.3d at 1123 (quoting Leorna v. U.S. Dep't of State, 105 F.3d 548, 551 (9th Cir. 1997)).
Here, Plaintiff's counsel filed the first suit; she was not acting pro se. In fact, Plaintiff's Exhibit 10 indicates that she had hired her attorney as early as March 20, 1998. Therefore, Plaintiff's attorney should have known the requirements for filing this type of suit in federal or in state court.
There is no question that Plaintiff was aware of the circumstances that gave rise to her federal claims when she received her right-to-sue notice from DFEH on April 21, 1998, particularly because she had obtained legal counsel at that time. See Parker-Reed v. Sprint Corp., 2005 WL 2648028, at *4 (E.D. Cal. 2005). She chose to file her initial suit consisting of only state law claims in federal court in February 1999. Although she added federal claims and attempted to rectify her failure to exhaust with the EEOC before her suit was dismissed, Plaintiff did not at any time preserve her initial claims under the FEHA by filing in state court, a venue that was both proper and open to her. Jurisdiction is a basic legal principle, and equitable tolling is inappropriate where Plaintiff's counsel has failed to file suit in the appropriate venue. See Ficalora v. Lockheed Corp., 193 Cal. App. 3d 489, 493, 238 Cal. Rptr. 360 (1987) (stating "the FEHA scheme specifically requires that after a complaining employee receives a notice that a civil suit may be brought, the 'superior, municipal, and justice courts of the State of California shall have jurisdiction of such actions, and the aggrieved person may file in any of these courts'" and commenting that "[b]ecause appellant brought her suit in federal court there is a question as to whether she complied with the statutory scheme at all. Even if suing in federal court is considered one of 'several legal remedies' available to appellant and equitable tolling applies, the statute of limitations has nevertheless run.").
However, the California Supreme Court has approved equitable tolling where plaintiffs timely filed suit in federal court, the federal court declined to assert jurisdiction over their state law cause of action, and plaintiffs promptly asserted the cause in the proper state court. Addison, 21 Cal.3d at 319. In doing so, the Court explained that "application of the equitable tolling doctrine requires a balancing of the injustice to the plaintiff occasioned by the bar of his claim against the effect upon the important public interest or policy expressed by the . . . limitations statute." Id. at 321. In that case, the court found that "under the circumstances herein minimal uncertainty or delay could result when the limitations period is tolled during pendency of a timely filed federal suit subsequently dismissed for lack of jurisdiction." Id.
Although the reasoning in Addison is sound, it is not applicable here. Plaintiff timely filed her state-law-based action in federal court, from which it was subsequently and rightfully dismissed. Instead of filing her remaining state law claims in state court, where the policy of Addison may apply, Plaintiff re-filed suit in federal court and initiated a new matter. The Court declines to extend the doctrine of equitable tolling to a case such as this, where it would serve to allow a second bite at the apple without good cause, thus thwarting the sound policy behind the applicable statute of limitation. Therefore, Plaintiff's DFEH claims regarding activities before May 1998 are time barred.
ii. Equitable Tolling of Plaintiff's Title VII Claims
Like state claims under the FEHA, Title VII claims also require exhaustion of administrative remedies. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002) ("Title 42 U.S.C. § 2000e-5(e)(1) is a charge filing provision that 'specifies with precision' the prerequisites that a plaintiff must satisfy before filing suit."). However, the time period for filing a charge is not a jurisdictional requirement, so it is subject to equitable doctrines such as waiver, estoppel, and equitable tolling. Id. at 113, 121 (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 398 (1982)). "Courts may evaluate whether it would be proper to apply such doctrines, although they are to be applied sparingly." Id. at 113.
Within 300 days of the discrete retaliatory or discriminatory act in California. 42 U.S.C. § 2000e-5(e)(1).
Here, Plaintiff filed her charge with the EEOC on May 5, 1999. In her charge, Plaintiff typed the date of discrimination as January 12, 1999, which is the day she was terminated. May 5, 1999, is well past the 300-day deadline set by Title VII for filing a claim for discrimination that occurred in March 1998 and earlier. However, in the particulars of her charge, Plaintiff states that "[o]n a continuing basis, the latest being on 01-12-99, I have been subjected to harassment. . . . I was also denied reasonable accommodation, and transfer. On 01-12-99, I was discharged." Defendants assert that Plaintiff's EEOC charge was not timely for any claims outside of those related to her termination. Plaintiff asserts the charge was timely due to the "hostile work environment" or "continuing violations" doctrine.
Applying the above analysis of equitable tolling to Plaintiff's EEOC filing, equitable tolling is not appropriate to preserve Plaintiff's Title VII claims. Plaintiff was aware of the alleged violations, filed a charge with the DFEH, and had an attorney over a year before she filed her EEOC charge. If Plaintiff did not suffer "continuing violations," her Title VII claims for any activities occurring before July 17, 1998, (300 days before receiving her right-to-sue letters from the EEOC and the DFEH) are barred for failure to exhaust her administrative remedies.
iii. Continuing Violations or Hostile Environment Claim
An exception to the time requirements discussed above for claims under the FEHA and Title VII exists when an employee raises a claim based on conduct that occurred on a continuing basis both within and outside the statutory period. Richards v. CH2M Hill, Inc., 26 Cal.4th 798, 812 (2001); Morgan, 536 U.S. at 105. Under California law, this exception is called the "continuing violations doctrine." Richards, 26 Cal.4th at 812. The Supreme Court has limited these claims to "hostile environment claims." Morgan, 536 U.S. at 110.
a. Title VII's Hostile Environment Claims
The Supreme Court recently examined the nature of hostile environment claims in National Railroad Passenger Corporation v. Morgan. The Court explained that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 113. "Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment practice.'" Id. at 114.
In contrast, the Court explained that "[h]ostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct." Id. at 115. "A hostile work environment claim is composed of a series of separate acts that collectively constitute one 'unlawful employment practice.'" Id. at 117. The Ninth Circuit interpreted and applied this holding in Porter v. California Department of Corrections, 419 F.3d 885, 891-94 (9th Cir. 2005). The court held that "to determine whether all of [the alleged] events constitute 'one unlawful employment practice,' we consider whether they were 'sufficiently severe or pervasive,' and whether earlier or later events amounted to 'the same type of employment actions, occurred relatively frequently, [or] were perpetrated by the same managers.'" Id. at 893, quoting Morgan, 536 U.S. at 116, 118, 120.
If a hostile environment claim is not time barred, to survive a summary judgment motion in the Ninth Circuit a plaintiff must show that "(1) she was subjected to verbal or physical conduct of a sexual nature; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment." Id. at 892.
To be timely, a hostile environment claim relies on the actions that do fall within the statutory period. After July 17, 1998, Plaintiff alleges two types of conduct occurred: (1) Circuit City's alleged on-going harassment through its subsidiary FNANB regarding Plaintiff's credit; and (2) Circuit City's decision to terminate Plaintiff's employment. Plaintiff's earlier claims centered around sexual harassment, discrimination based on sex, and failure to accommodate her disability by certain individuals. It is apparent that Plaintiff's sexual harassment claims are not related to her more recent woes. The two acts that fall within the statutory period were perpetrated by completely different actors/managers than those alleged prior to July 17, 1998. Additionally, the later actions differ greatly in kind from the earlier alleged sexual harassment and discrimination.
Plaintiff's Title VII claims regard only sexual discrimination and harassment and retaliation for objecting to such conduct. A federal failure to accommodate claim is properly brought under the Americans with Disabilities Act, 104 Stat. 328, 42 U.S.C. §§ 12101 et seq.
Under the standard outlined in Morgan and Porter, Plaintiff's hostile environment claim for sexual harassment fails. As the Porter court explained, this Court should "refuse to mix recent discrete acts like tinder with the planks of ancient sexual advances and then, regardless of whatever it was that set the spark in the furnace, call the fire that ignites therefrom a hostile environment. If the flames of an allegedly hostile environment are to rise to the level of an actionable claim, they must do so based on the fuel of timely non-discrete acts." Porter, 419 F.3d at 893. Accordingly, because Plaintiff's termination and her credit woes do appear to be discrete acts, Plaintiff's Title VII sexual harassment and discrimination claims related to her active employment should be dismissed for untimeliness and failure to exhaust administrative remedies. Plaintiff's claims related to her termination and the harassment from FNANB, however, were timely filed at the EEOC.
b. FEHA's Continuing Violation Doctrine
The Court has found Plaintiff's initial filing with the DFEH is barred by the statute of limitation. Therefore, before analyzing California law regarding its continuing violation doctrine, it is appropriate to first determine whether Plaintiff's second charge filed with DFEH, on May 5, 1999, contains allegations of a continuing violation, and which charges contained in Plaintiff's second filing with the DFEH have been exhausted.
Plaintiff checked the boxes for discrimination and retaliation on the basis of sex and physical disability on her second DFEH charge, and she limited the particulars to her termination on January 12, 1998. For Plaintiff's other charges of discrimination and retaliation within the statutory period to be considered, they would have to be "like or reasonably related" to Plaintiff's claims articulated in her May 5 charge. Rodriguez, 265 F.3d at 897. Both the Ninth Circuit and California courts have endorsed the "like or reasonably related" standard. Id.; Sandhu v. Lockheed Missiles Space Co., 26 Cal. App. 4th 846, 859 (1994). "This standard is met where the allegations in the civil suit are within the scope of the administrative investigation 'which can reasonably be expected to grow out of the charge of discrimination.'" Rodriguez, 265 F.3d at 897, quoting Sandhu, 26 Cal. App. 4th at 859. Here, the acts of discrimination and retaliation leading up to Plaintiff's termination are reasonably related to it, so a continuing violation theory was within Plaintiff's May 5, 1999, filing with the DFEH.
In Yanowitz v. L 'Oreal USA, Inc., 36 Cal.4th 1028, 1057-58, the California Supreme Court distinguished its continuing violation doctrine from the U.S. Supreme Court's ruling in Morgan. While the Morgan court limited its continuing violations analysis to hostile environment claims, the California Court in Yanowitz found this limitation inappropriate. 36 Cal.4th at 1057 (stating that a "rule categorically barring application of the continuing violation doctrine in retaliation cases, however, would mark a significant departure from the reasoning and underlying policy rationale of our previous cases interpreting the FEHA statute of limitations"). "[W]hen the requisite showing of a temporally related and continuous course of conduct has been established, it is appropriate to apply the continuing violations doctrine to disability accommodation claims, as well as to harassment claims." Id. at 1058. Therefore, "in a retaliation case, as in a disability accommodation or harassment case, the FEHA statute of limitations begins to run when an alleged adverse employment action acquires some degree of permanence or finality." Id. at 1059.
Under this analysis, Plaintiff's claims regarding Defendants' continuing failure to accommodate her physical disability, which culminated in her termination as alleged in her DFEH charge, is timely filed if it qualifies as a continuing violation. To determine whether it does qualify, the Court should consider whether the employer's actions were "(1) sufficiently similar in kind — recognizing . . . that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence." Id.
Here, Plaintiff contends that Defendants discriminated against her by failing to accommodate her physical disability on an on-going basis from March 1998 to January 1999 by refusing to offer her a position in a store other than the Vista store, and that these acts were also in retaliation for her reporting their failure to accommodate and the sexual harassment she experienced. She also claims that Circuit City created and exacerbated the problems she experienced with FNANB in retaliation for her reporting unlawful conduct on the part of Mr. Gibbs and Mr. Anderson. Considering the factors outlined above, it appears Plaintiff's second charge does sufficiently allege a continuing violation regarding Defendants' failure to accommodate, so the Court may properly consider all acts related to and leading up to Plaintiff's termination.
iv. Waiver and Laches of Statute of Limitation Defense
Plaintiff asserts Defendants cannot assert the statute of limitations defense under two theories: either they waived it by not answering the complaint until August 2004, more than five years after Plaintiff filed suit, or the defense is barred by laches. The statute of limitation is an affirmative defense that must be raised in the defendant's answer or it is waived. Fed.R.Civ.P. 8(c). Here, Defendants did raise it in their answer, but their answer was delayed. The reason for the delay was Defendants' attempt to compel arbitration, which generally is asserted before further participation in the action to avert waiver of arbitration rights. Additionally, Plaintiff never moved for a default or moved to strike Defendants' answer because it was not timely filed. Defendants did not waive their statute of limitation defense.
"In the Ninth Circuit, arbitration rights are subject to constructive waiver if three conditions are met: (1) the waiving party must have knowledge of an existing right to compel arbitration; (2) there must be acts by that party inconsistent with such an existing right; and (3) there must be prejudice resulting from the waiving party's inconsistent acts." United Computer Systems, Inc. v. AT T Corp., 298 F.3d 756, 765 (9th Cir. 2002).
The equitable doctrine of laches is codified in California Civil Code § 3527, which states "[t]he law helps the vigilant, before those who sleep on their rights." It arises when a party's unreasonable delay in asserting a right causes severe prejudice to the opposing party. Gerhard v. Stephens, 68 Cal.2d 864, 904 (1968); see also Kourtis v. Cameron, 419 F.3d 989, 1000 (9th Cir. 2005). However, "[m]ere lapse of time . . . does not bar relief." Id. (internal quotation and citation omitted). Laches is usually an affirmative defense raised against a plaintiff who has delayed in seeking relief. Its application here is questionable. Although there has been a substantial delay in getting to this phase of Plaintiff's suit, and this delay has no doubt been expensive and frustrating to Plaintiff, that does not mean Defendants have waived their defense of statute of limitation through laches. Plaintiff has not established that Defendants' delay in asserting the statute of limitation was unreasonable, and this is a requirement to assert laches. Kourtis, 419 F.3d at 1000.
B. The Merits
To survive a summary judgment motion for a Title VII or FEHA claim, Plaintiff must establish a prima facie case of discrimination and/or retaliation. See Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). If Plaintiff meets her burden in asserting a prima facie claim, the burden shifts to Defendants to articulate a legitimate nondiscriminatory reason for their decision. Id. If Defendants articulate such a reason, Plaintiff bears the ultimate burden of demonstrating that the reason was merely a pretext for a discriminatory or a retaliatory motive. Id.
Plaintiff's remaining federal claims relate to the discrete act of her termination and the FNANB harassment. Plaintiff's remaining state claims also relate to her termination and the FNANB harassment, but include the continuing violations leading up to those events.
i. Plaintiff's Title VII Claims
Title VII of the Civil Rights Act of 1964 provides, in relevant part, that "[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Plaintiff alleges two Title VII claims. The first is gender discrimination and harassment. As discussed above, Plaintiff's allegations of gender discrimination and sexual harassment occurred before July 17, 1998, and therefore cannot be considered by the Court because they are not within the relevant limitations period.
Plaintiff's second Title VII claim is for unlawful retaliation. Title VII prohibits employers from discriminating against an employee because that employee "has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Plaintiff claims Defendants retaliated against her through harassment by FNANB and termination due to her reporting of sexual harassment and gender discrimination.
To establish a prima facie case of retaliation, an employee must show that (1) she engaged in a protected activity; (2) her employer subjected her to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action; Ray, 217 F.3d at 1240. When adverse employment decisions closely follow complaints of discrimination, retaliatory intent may be inferred. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002) (holding that the causal link between a protected activity and the alleged retaliatory action "can be inferred from timing alone" when there is a close proximity between the two); Bell v. Clackamas County, 341 F.3d 858, 865-66 (9th Cir. 2003) (holding that proximity in time may, by itself, constitute circumstantial evidence of retaliation).
Here, Plaintiff engaged in protected activity when she complained about the sexual harassment and gender discrimination she experienced at the Escondido store. Plaintiff's termination was an adverse employment action. Less clear is whether the FNANB harassment was an adverse employment action. Under Ninth Circuit case law, an employment action qualifies as adverse "if it is reasonably likely to deter employees from engaging in protected activity." Ray, 217 F.3d at 1243. This is a broad definition, and the FNANB allegations may qualify. However, even assuming the FNANB harassment is an adverse employment action, there is no causal connection between the actions of FNANB and Circuit City relating to Plaintiff's credit and her protected activities. Plaintiff has offered no evidence other than her conclusory allegations that the Circuit City employees responsible for informing FNANB that she was on disability leave were aware of her protected activity. Knowledge that Plaintiff engaged in a protected activity is a prerequisite to any retaliatory act. Therefore, Plaintiff has failed to establish a prima facie case of retaliation regarding her treatment from FNANB.
The causal connection between Plaintiff's termination and her protected activity is also weak. Assuming Plaintiff has successfully established a prima facie case regarding this claim, Defendants have presented a legitimate, non-retaliatory reason for her termination. Circuit City submits that Plaintiff was fired due to a company-wide policy that calls for termination of all employees if they do not work for a period of six months or longer. Plaintiff has failed to establish that this reason is pretextual. She has presented no evidence that this policy was a cover-up for unlawful discrimination. See Vasquez v. City of Los Angeles, 349 F.3d 634, 640-41 (9th Cir. 2003) (to show pretext using circumstantial evidence, a plaintiff must put forward specific and substantial evidence regarding the employer's motives). Considering the weakness of Plaintiff's prima facie case and the lack of evidence of pretext, Plaintiff has failed to raise a genuine issue of material fact regarding her termination, and her Title VII claim regarding this action is dismissed.
ii. Plaintiff's FEHA Claims
Several of Plaintiff's state law claims are time barred. The claims that remain within the relevant time period (May 5, 1998), including the continuing violation claim, are her claim for retaliation and her claim for failure to accommodate. Plaintiff has established a prima facie case of retaliation: (1) she engaged in a protected activity by requesting reasonable accommodation; (2) she suffered an adverse employment action when Defendants terminated her; and (3) there was a causal connection between the two — Plaintiff did not return to work within six months because Defendants only offered her a position at the Vista store, where she could not work according to her doctors. See Pardi v. Kaiser Foundation Hospitals, 389 F.3d 840, 849 (9th Cir. 2004). Defendants have presented a legitimate, non-retaliatory reason for Plaintiff's termination, but she has established pretext. As mentioned above, when adverse decisions closely follow complaints of discrimination, retaliatory intent may be inferred. Id. at 850.
The analysis in the Title VII section regarding her FNANB claim applies to Plaintiff's state law claims as well.
Additionally, Plaintiff has established a prima facie case that Defendants failed to accommodate her disability: (1) she has established that she is disabled within the meaning of the Act; (2) she was a qualified individual able to perform the essential functions of the job with reasonable accommodation; and (3) she suffered an adverse employment action because of her disability. Allen v. Pacific Bell, 348 F.3d 1113, 1114 (9th Cir. 2003). As shown above, in spite of Defendants' proferred reason for her termination, Plaintiff has presented enough evidence to establish pretext here as well. Thus, summary judgment is inappropriate for two of Plaintiff's FEHA claims because Plaintiff has demonstrated there is a genuine issue of material fact as to whether Defendants failed to accommodate her disability and as to whether Defendants retaliated against her.
C. Jurisdiction
With the dismissal of Plaintiff's Title VII claims, the Court no longer has federal question jurisdiction over this matter. However, this does not necessarily mean that the Court must dismiss Plaintiff's state law claims. Under 28 U.S.C. § 1367, the Court has supplemental jurisdiction over Plaintiff's state law claims so long as it has original jurisdiction as well. Section 1367(c) states that district courts "may decline to exercise supplemental jurisdiction over a claim . . . if . . . (3) the district court has dismissed all claims over which it has original jurisdiction[.]" 28 U.S.C. § 1367(c)(3).
In Acri v. Varian Assoc., Inc., 114 F.3d 999, 999-1001 (9th Cir. 1997) ( en banc), the Ninth Circuit considered whether a district court could retain jurisdiction once all federal claims had been dismissed with prejudice. The court recognized the fact that state law claims perhaps should be dismissed if federal claims are dismissed before trial, as United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966), instructs, "has never meant that they must be dismissed." Acri, 114 F.3d at 1000 (citing, e.g., Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988) (emphasis in original)). "Even more clearly under the statutory scheme, while courts 'shall' have supplemental jurisdiction under § 1367(a), they 'may' decline to exercise it under § 1367(c). Id. The court also cautioned district courts:
[W]e emphasize that actually exercising discretion and deciding whether to decline, or to retain, supplemental jurisdiction over state law claims when any factor in subdivision (c) is implicated is a responsibility that district courts are duty-bound to take seriously. The Supreme Court has stated, and we have often repeated, that "in the usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims." Carnegie-Mellon, 484 U.S. at 350 n. 7. While discretion to decline to exercise supplemental jurisdiction over state law claims is triggered by the presence of one of the conditions in § 1367(c), it is informed by the Gibbs values "of economy, convenience, fairness, and comity." See, e.g., Allen, 92 F.3d at 846; Executive Software N. Am. v. United States Dist. Court, 24 F.3d 1545, 1557 (9th Cir. 1994).Id. at 1001; see also Munger v. City of Glasgow Police Dep't, 227 F.3d 1082, 1089 n. 4 (9th Cir. 2000) (approving of a district court's retention of state law claims after federal claims had been dismissed on summary judgment because the remaining claims were based on the same factual record and the district court was fully familiar with the record).
This case has been before the Court for more than six years. Orders have been appealed to the Ninth Circuit twice, and once to the Supreme Court. The Court finds the interests of justice would be best served by retaining supplemental jurisdiction over Plaintiff's remaining state law claims.
II. Plaintiff's Objections to Evidence, Defendants' Objections to Evidence
Plaintiff objects to Defendants' reliance on certain evidence used to impugn Plaintiff's character in their memorandum in support. Plaintiff's character and her personal and family history is not relevant to this suit. The Court grants Plaintiff's objection as to this evidence on the basis of Federal Rule of Evidence 412 (evidence of alleged sexual misconduct inadmissible). Plaintiff also objects to other evidence on the ground of lack of authentication, foundation, and hearsay. The Court reserves these objections at this stage in the proceedings.
Defendants also object to evidence on the basis of authentication. The Court likewise reserves ruling.
CONCLUSION
The following summary of the remaining claims and relevant time periods is offered to assist the Court and the parties in preparing for trial. The Court has dismissed Plaintiff's federal claims for relief, which were her sixth and seventh causes of action. Also dismissed are Plaintiffs first cause of action for harassment and discrimination on the basis of gender in violation of Cal. Gov. Code § 12940(j) (formerly (h)); her second cause of action for failure to take all reasonable steps necessary to prevent discrimination in violation of Cal. Gov. Code § 12940(k) (formerly (i)); and Plaintiff's third cause of action for discrimination on the basis of gender or race in employment in violation of Cal. Gov. Code § 12940(a). These claims are dismissed on statute of limitation grounds because they were based on events that occurred more than one year before Plaintiff filed her second, timely charge with the DFEH. Additionally, the events leading to these causes of action do not qualify as continuing violations under California law.
Plaintiff's remaining causes of action are her fourth cause of action for retaliation for requesting reasonable accommodation in violation of Cal. Gov. Code § 12940(h) (formerly (f)); and her fifth cause of action for failure to accommodate a physical handicap in violation of Cal. Gov. Code § 12940(m) (formerly (k)). Plaintiff has raised a genuine issue of material fact as to these causes of action. The Court found that Plaintiff stated a continuing violation regarding these claims, and all evidence related to such claims is admissible. The parties are limited to introducing evidence related to Defendants' alleged failure to accommodate and alleged retaliation against Plaintiff for her complaints regarding their failure to accommodate her physical or mental disabilities. Any questions about admissibility of any particular conduct not related to these claims should be addressed outside the presence of the jury in motions in limine.
Accordingly IT IS HEREBY ORDERED that:
1. Defendants' Motion for Summary Judgment, or in the alternative, for Partial Summary Judgment (Ct. Rec. 148) is GRANTED, in part, DENIED, in part.
2. Plaintiff's Objections to Evidence in Support of Defendants' Motion for Summary Judgment (Ct. Rec. 158) is GRANTED, in part, and RESERVED.
3. Defendants' Objections to Evidence Offered by Plaintiff re: Motion Response (Ct. Rec. 160) is RESERVED.
4. Plaintiff's Request for Judicial Notice (Ct. Rec. 157) is DENIED AS MOOT.
5. The Scheduling Order is amended as follows:
6. Exhibit lists and witness lists shall be filed and served, and exhibits made available for inspection (or copies provided), on or before JANUARY 17, 2006. The witness list shall include identification of each witness's testimony. Where feasible, all exhibits identified in depositions shall be pre-marked with the exhibit numbers that will be used at trial.
Objections to such lists and any accompanying briefs shall be filed and served on or before JANUARY 20, 2006. Objections shall be heard at the pretrial conference. Copies of the exhibits to which there are objections shall be provided to the Court on or before JANUARY 20, 2006.
Each party shall bring to trial and any other hearing on the merits, photocopies of their relevant pre-marked exhibits for the Court, opposing counsel, and testifying witness, unless it is not possible to do so because of the nature of an exhibit. It is recommended that these photocopies be organized into separate binders.
7. All unresolved substantive or evidentiary issues that may foreseeably arise during trial shall be addressed by motions in limine to be filed and served on or before JANUARY 17, 2006. Responses shall be filed and served on or before JANUARY 23, 2006. Such motions will be addressed and resolved at the pretrial conference.
Challenges to the admissibility of expert opinion testimony shall be made by motion in limine and shall be heard at the pretrial conference. If the party challenging expert testimony anticipates that an evidentiary hearing shall be required, the party shall so advise the Court and opposing counsel in conjunction with the filing of its motion in limine. The party shall describe the nature of the evidence to be presented and provide an estimate of the amount of time required for the hearing.
8. Designation of substantive, as opposed to impeachment, deposition testimony shall be by highlighting and shall be served on or before JANUARY 13, 2006. Cross-designations by highlighting in a different color shall be served on or before JANUARY 20, 2006. Objections to any designated deposition testimony shall be filed and served on or before JANUARY 25, 2006, and shall be heard and resolved at the pretrial conference. Copies of designations to which there are objections shall be provided to the Court on or before JANUARY 25, 2006.
9. A joint Pretrial Order shall be filed on or before JANUARY 23, 2006, in written form and on a computer disk, preferably in WordPerfect format.
The list of exhibits contained in the joint Pretrial Order shall reflect the exhibit marking scheme described above. In preparing the joint Pretrial Order, the parties shall confer regarding duplicate exhibits and determine which party will submit such exhibits for trial.
Other dates on the scheduling order remain unchanged. IT IS SO ORDERED. The District Court Executive is directed to enter this order and to provide copies to counsel.