Opinion
No.C00-03185 CRB
December 19, 2000
MEMORANDUM AND ORDER
In this diversity lawsuit plaintiff alleges that defendant discriminated against him on account of his disability in violation of the California Fair Employment and Housing Act ("FEHA") and the California Unruh Act. His lawsuit is based on the same facts as another lawsuit pending in the federal courts, Deppe v. United Airlines. 96-2941 CRB. That lawsuit makes a claim under the Americans with Disabilities Act ("ADA"). Now before the Court is defendant's motion to dismiss for failure to state a claim. After carefully considering the papers filed by the parties, and having given the parties the opportunity for oral argument, the motion to dismiss is GRANTED without leave to amend.
BACKGROUND
Plaintiff Richard Deppe was employed by defendant as a line mechanic. He was injured on the job in December 1989 when a ladder collapsed while he was exiting an aircraft he had been repairing. On October 12, 1990, defendant placed him on two-year extended illness status ("EIS") leave provided under a collective bargaining agreement between defendant and plaintiffs union. After receiving benefits and not working for several months, plaintiff requested that defendant provide him vocational rehabilitation benefits. In early 1992, plaintiff began vocational re-training in computer skills at defendant's expense.
The EIS leave should have expired on October 14, 1992; however, due to an oversight, defendant did not discover that plaintiff had exceeded his leave until August 1993. In October 1993, plaintiff was examined by a United physician who refused to clear plaintiff for work despite plaintiffs assertion that he had fully recovered. Accordingly, defendant terminated plaintiff on November 12, 1993.
On August 16, 1996, plaintiff filed his original action alleging that defendant violated the ADA by terminating him. On June 17, 1998, plaintiff moved to amend his complaint to add a claim under the FEHA. The Court denied the motion to amend as untimely.
The Court granted defendant summary judgment on November 23, 1998. The Ninth Circuit reversed the Court's summary adjudication on July 11, 2000, but did not reverse the Court's denial of the motion to amend; plaintiff apparently did not appeal that issue. After the Ninth Circuit ruling the plaintiff filed the present state law action based on the same facts as are at issue in the ADA lawsuit.
DISCUSSION
A. Standard of Review
On a motion to dismiss the Court must accept plaintiffs' allegations as true and construe them in a light most favorable to the plaintiff. See School of Business v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). A district court should not dismiss for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [the plaintiff's] claims which would entitle [the plaintiff] to relief." Barnett v. Centoni 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). The Court must also draw all reasonable inferences from plaintiffs factual allegations, but the Court "need not accept as true unreasonable inferences, unwarranted deductions of fact, or conclusory legal allegations cast in the form of factual allegations." Bureerong v. Uvawas, 922 F. Supp. 1450, 1462 (C.D. Cal. 1996) (citing Western Mining Council v. Watt 643 F.2d 618, 624 (9th Cir. 1981)).
B. The Unruh Act Claim
Defendant moves to dismiss the Unruh Act claim on the ground that it does not apply to employment discrimination, including disability discrimination, as a matter of law. The Unruh Act, California Civil Code section 51, provides in relevant part:
All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, or disability are entitled to full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
The California Supreme Court has repeatedly held that the Unruh Act does not apply to employment discrimination. See Isbister v. Boys' Club of Santa Cruz, Inc., 40 Cal.3d 72, 88 (198); see also Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 500 (1970) (holding that plaintiff could not recover for discrimination under the Unruh Act because employment discrimination does not fall within "furnishing goods, services, or facilities to its clients, patrons or customers").
In 1992 the California Legislature amended the Unruh Act to include the following statement: "a violation of the right of any individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) shall constitute a violation of this section." Plaintiff argues that this amendment made employment disability discrimination actionable under the Unruh Act.
Plaintiff's argument is unpersuasive. First, since the 1992 amendment the Ninth Circuit has confirmed, in a race discrimination case, that the Unrub Act does not apply to employment discrimination. Strother v. Southern Calif. Permanente Medical Group, 79 F.3d 859, 873-875 (9th Cir. 1996) (holding that Unruh Act does not apply to employment discrimination). The Ninth Circuit observed that "[i]n excluding employees from Unruh Act coverage, California courts have recognized that the Act and its predecessors have generally been designed to prevent proprietors of businesses from excluding anyone from frequenting their business because of race, national origin, sex, etc." Id. at 873. Thus, to accept plaintiffs argument, the Court would have to conclude that although the Unruh Act was designed to prevent proprietors of businesses from excluding anyone from frequenting their business for an unlawful reason, the Legislature intended the 1992 amendment to expand the scope of the Act to apply to employment discrimination, but only in the disability context. Nothing in the plain language of the amendment suggests such a nonsensical result.
Moreover, plaintiff does not cite a single case which holds that the Unruh Act applies to disability employment discrimination or any type of employment discrimination. This is unsurprising given the language of the Unruh Act and the availability of the FEHA. Accordingly, defendant's motion to dismiss the Unruh Act claim must be granted without leave to amend.
C. The FEHA Claim
Defendant moves to dismiss the FEHA claim on the ground that is barred by the statute of limitations. Plaintiff received his right-to-sue letter from the DFEH on December 2, 1993. Plaintiff had one year from that date to file his FEHA claim. He did not receive his EEOC right-to-sue letter, however, until May 20, 1996. The statute of limitations on his FEHA claim was arguably tolled while his EEOC administrative claim was pending, see Salgado v. Atlantic Richfield Co, 823 F.2d 1322, 1325 (9th Cir. 1987);Downs v. Dep't Water and Power, 58 Cal.App.4th 1093, 1099 (1997), therefore, the one-year statute of limitations began to run at the latest on May 20, 1996. Plaintiff did not file this action until July 2000 — more than three years too late.
Plaintiff responds that his FEHA claim is tolled under the California law of equitable tolling. In particular, he argues that the statute of limitations on his FEHA claim was tolled while he was pursuing his ADA claim since both claims arise out of identical facts.
1. Equitable Tolling Does Not Apply
Equitable tolling does not apply here as a matter of law. First, plaintiff has failed to cite any California case which suggests that the California courts would recognize equitable tolling under such circumstances; that is, that the pursuit of a federal claim tolls the statute of limitations on a state claim based on the same facts even though the plaintiff could have brought the state claim in the same proceeding with the federal claim. Indeed, the cases interpreting California law support the opposite conclusion.
In Ervin v. Los Angeles County, 848 F.2d 1018 (9th Cir. 1988), for example, the Ninth Circuit held that "under California law . . . equitable tolling is inapplicable to a situation in which `a plaintiff who allegedly suffered several different wrongs pursues only one remedy as to one those wrongs.'" 14. at 1019 (quoting Loer v. Ventura Community College Dist., 147 Cal.App.3d 1071, 1086 (1983)); see also Donoghue v. County of Orange, 848 F.2d 926, 931 (9th Cir. 1987) (noting that under California law equitable tolling is not applicable when a plaintiff has pursued a remedy as to only one of several distinct wrongs). Accordingly, the court declined to equitably toll plaintiff's federal civil rights claim by virtue of her having previously filed a tort claim based on the same facts in state court. California law governed the tolling issue because the statute of limitations for section 1983 is governed by state law.
Here, plaintiff also allegedly suffered two wrongs: the ADA wrong and the FEHA wrong. Yet, he never pursued his alleged wrong under the FEHA. Accordingly, equitably tolling does not apply. See Ervin, 848 F.2d at 1019. This conclusion is consistent with federal law which holds that equitably tolling does not apply when a plaintiff pursues only one of two distinct legal wrongs. See Johnson v. Railway Express Agency, 421 U.S. 454, 460-61 (1975).
The conclusion that plaintiff's pursuit of his ADA claim did not toll his FEHA claim is further supported by the rule that a plaintiffs pursuit of FEHA administrative remedies does not toll the statute of limitations on a plaintiffs state common law claims. See Estes v. Allied Signal, Inc., 1998 WL 814638 (N.D. Cal. Nov. 12, 1998); Abito v. United Airline, 2000 WL 550043 (N.D. Cal. May 1, 2000). If a plaintiffs state common law claims are not tolled by the FEHA administrative process it follows that a plaintiffs statutory state law claim is not tolled by the pursuit of a federal statutory claim.
The cases upon which plaintiff relies do not apply. In Addison v. California, 21 Cal.3d 313 (1978), the plaintiff pursued his state claims and federal claims together in federal court. The federal court dismissed the federal claims and dismissed the state claims without prejudice. The plaintiff then promptly refiled the state claims in state court. The California Supreme Court held that the statute of limitations on the state claims was tolled while the plaint if was pursuing the state claims in federal court. The court recognized that to hold otherwise would mean that the plaintiff, to protect his rights, would have had to file identical claims in both state and federal court at the same time. Id. at 319.
Here, in contrast, plaintiff did not pursue his FEHA claim in any forum for more than seven years after he received his DFEH right-to-sue letter. Thus the circumstances of this case are entirely unlike those before the Supreme Court in Addison. See id. at 315 ("[u]nder the circumstances of this case we will conclude that the filing of an action in the United States District Court suspends the running of . . . the statute of limitations"). Moreover, refusing to apply equitable tolling here will not encourage duplicative litigation as would have been the case in Addison. To the contrary, such a holding will encourage plaintiffs to pursue their federal and state claims in the same forum. Plaintiffs interpretation of equitable tolling leads to the opposite result; plaintiff would be allowed to pursue his FEHA claim in one case and his ADA claim in another.
Finally, in applying equitable tolling the Addison court noted that if the doctrine were not applied the plaintiffs would be denied a hearing on the merits of their claims (since the federal suit had been dismissed). Again, that is not the case here. Plaintiff has been receiving, and is continuing to receive, a full and fair hearing on his employment discrimination claim under the ADA.
Downs v. Dept. of Water Power, 58 Cal.App.4th 1093 (1997), is also inapplicable. There the California Court of Appeals held that
[w]hen a charge of discrimination or harassment is timely filed concurrently with the EEOC and the DFEH, the investigation of the charge is deferred by the DFEH to the EEOC under a work-sharing agreement, and the DFEH issues a right-to-sue letter upon deferral then the one-year period to bring a FEHA action is equitably tolled during the pendency of the EEOC investigation until a right-to-sue letter from the EEOC is received.Downs, 58 Cal.App.4th at 1102; see also Salgado, 823 F.2d at 1322 (same). The Downs court was careful to base its holding on the work-sharing agreement between the EEOC and the DFEH, and the desire to avoid having the plaintiff file his FEHA action while the possibility exists that the EEOC administrative process will moot his claims. Thus,Downs tolled the statute until the plaint if received the right-to-sue letter. Plaintiff asks the Court to extend Downs significantly; rather than tolling the FEHA statute of limitations until the EEOC right-to-sue letter is received, plaintiff urges the Court to hold that the statute is tolled until the federal claim (the claim investigated by the EEOC) is resolved. Neither the Downs court, nor any other court, has ever applied equitable tolling so broadly.
The other cases cited by plaintiff are equally inapposite. Elkins v. Derby, 12 Cal.3d 410 (1974), Jones v. Tracy School District, 27 Cal.3d 99 (1980), Cervantes v. City of San Diego, 5 F.3d 1273 (9th Cir. 1993), all involve tolling while a plaintiff pursues administrative remedies that may moot further legal action. In Jones, for example, the court held that the statute of limitations on plaintiffs state-law wage discrimination claim was tolled (for the purpose of calculating unpaid wages) while the plaintiff pursued administrative remedies with the Department of Labor designed to pay her those very same wages. In Elkins, the court applied the equitable tolling doctrine to a plaintiff who first pursued a workers' compensation remedy, which was denied after the limitations period because the plaintiff had not been an "employee," and the plaintiff then filed an action in superior court. In Cervantes, the plaintiff pursued administrative remedies related to his wrongful termination; if he had been successful his section 1983 claim would have been mitigated or even mooted. Id. at 1274. In all three cases the plaintiffs were pursuing administrative claims that would have essentially mooted any need for later court action. See Biteng v. City of Santa Rosa, 1998 WL 427441 (N.D. Cal. July 23, 1998) (stating that in order for equitable tolling to apply, "the legal remedy sought must be one `designed to lessen the extent of [the claimant's] injuries or damage'" (quoting Addison, 21 Cal.3d at 317). Such tolling does not apply here.
The Court of Appeals decision in Appalachian Ins. v. McDonnell Douglas Corp., 214 Cal.App.3d 1, 36-42 (1989), is similar to Addison. InAppalachian, plaintiff filed suit in state court and defendant removed. Rather then move to remand, plaintiff voluntarily dismissed the complaint and filed a new action in state court. The court held that the statute of limitations was tolled while the action was pending in federal court. This result is entirely consistent with Addison the claims were tolled while those claims were being prosecuted, albeit in a forum other than that originally chosen by the plaintiff. Here plaintiff did not pursue his FEHA claim in any forum until long after the statute of limitations had run. Accordingly, plaintiff's FEHA claim is barred by the statute of limitations.
2. Even If Equitable Tolling Could Apply, Plaintiff's Claim Is Still Time-Barred
In Addison the California Supreme Court set forth three requirements for equitable tolling: (1) the plaintiff .gave timely notice to the defendant of the plaintiffs claim, (2) the resultant delay did not cause prejudice to the defendant's position, and (3) the plaintiff acted reasonably and in good faith. Addison, 21 Cal.3d at 319. Plaintiff has made the first showing; he gave timely notice by filing a complaint with the DFEH many years ago. He cannot, however, meet the next two requirements.
Plaintiff's delay has prejudiced defendant. First, the Court denied plaintiffs motion to amend to add an FEHA claim on the eve of trial in June 1998. Up until that point defendant believed it was defending only an ADA claim, which has a strict damages cap. It may have conducted the litigation differently had it believed it was at risk for a much larger verdict under the FEHA. Similarly, after the motion to amend was denied, and plaintiff apparently did not appeal the denial, defendant continued to operate under the assumption that it is only defending an ADA claim. Defendant will be prejudiced if now, almost four years after the original lawsuit was filed, it suddenly finds itself defending a claim with no damages cap.
Moreover, plaintiff has not acted reasonably and in good faith. It was unreasonable for plaintiff to not make a FEHA claim because he believed the law of workers' compensation precluded such a claim; as the Supreme Court's subsequent decision in City of Moorpark v. Superior Court, 18 Cal.4th 1143 (1998) demonstrated plaintiff could have made a good faith argument that his FEHA disability claim was not preempted by workers compensation. In addition, after Moorpark was decided, and after this Court denied plaintiffs motion to add a FEHA claim to the original lawsuit, plaintiff could have filed his new FEHA lawsuit. He did not. Instead he waited two years to file his FEHA claim in state court. Such delay does not warrant application of equitable tolling.
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss plaintiffs complaint is GRANTED without leave to amend.
IT IS SO ORDERED.