Burrell was on notice, or should have been, that challenges to the reclassification would be futile no later than the time her union declined to take action challenging the result. See Morgan, 88 Cal. App. 4th at 67; Maridon, 2013 WL 1786592, at *9-11; see also Gardner v. City of Berkeley, 838 F. Supp. 2d 910, 921 (N.D. Cal. 2012) (finding employment actions final when "[e]ach event involved a final decision to either retire or not reinstate Plaintiff, with no opportunity for further discussion . . . [Although Defendants] could still hire Plaintiff in the future, a final decision was still made to not hire Plaintiff at that time.") (emphasis in original). Thus, a claim based on Burrell's 2002 reassignment is time-barred, because the reassignment became permanent in 2002 and the continuing violations doctrine is inapplicable.
Similarly, the court in Gardner v. City of Berkeley, found that the continuing violations doctrine did not apply because "[p]laintiff cannot demonstrate that the events had not acquired a 'degree of permanence.'" 838 F. Supp. 2d 910, 920 (N.D. Cal. 2012) (emphasis added). Plaintiff in the case at bar points to no decisions containing language suggesting that the defendant bears the burden on this issue.
Before suing for violation of FEHA, a plaintiff must file an administrative complaint with the Department of Fair Employment and Housing ("DFEH") within "'one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred,' barring exceptions related to delayed discovery." Gardner v. City of Berkeley, 838 F. Supp. 2d 910, 917-18 (N.D. Cal. 2012) (citing Cal. Govt. Code § 12960(d) (2017)). Shell moves for summary judgment on this claim on the grounds that the claim is time-barred because Babot filed her administrative complaint with the DFEH on October 18, 2017, and that she was not subjected to any harassing conduct by Duff during the one-year period leading up to that complaint (i.e., October 18, 2016 to October 18, 2017).
A plaintiff may not recover under § 1983 claim for the deprivation of rights guaranteed by the ADA, if the only alleged deprivation of rights is the employee's rights under the ADA. See, e.g., Holbrook v. City of Alpharetta, 112 F.3d 1522, 1531 (11th Cir. 1997). However, some courts have allowed § 1983 claims based on due process violations even though the same alleged conduct may also violate the ADA. See, e.g., Gardner v. City of Berkeley, 838 F. Supp. 2d 910, 927 (N.D. Cal. 2012); Martinez v. City of Maywood, No. CV 09-06734 SJO (RCx), 2009 WL 10670099, *3 (C.D. Cal. Dec. 21, 2009). The case law makes clear that a plaintiff must properly allege a protected liberty or property interest to establish a due process claim.
To prevail on a hostile workplace/harassment claim, an employee must show that: (1) he or she was subjected to verbal or physical conduct related to a protected trait; (2) that the conduct was unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of his or her employment and create an abusive work environment. Reno v. Baird, 18 Cal. 4th 640, 646-47 (1998); Gardner v. City of Berkeley, 838 F. Supp. 2d 910, 926 (N.D. Cal. 2012). Unlike discrimination claims, harassment allegations must be based on conduct that is avoidable and "outside the scope of necessary job performance," and do not include "personnel management actions such as . . . job or project assignments, office or work station assignments. . . deciding who will and who will not attend meetings. . . and the like. . ."
” Gardner v. City of Berkeley, 838 F.Supp.2d 910, 926 (N.D. Cal. 2012) (Judge Edward Chen) (internal quotation omitted).
Under FEHA, "a 'protected activity' exists where the plaintiff 'has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.'" Gardner v. City of Berkeley, 838 F. Supp. 2d 910, 925 (N.D. Cal. 2012) (quoting Cal. Gov't Code § 12940(h)). Plaintiff has failed to identify any practices forbidden under FEHA that he opposed prior to his termination.
Under the California Fair Employment and Housing Act (FEHA), "[n]o complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred." Cal. Gov. Code § 12960(d); see also Gardner v. City of Berkeley, 838 F. Supp. 2d 910, 917-18 (N.D. Cal. 2012). Therefore, any discriminatory acts that occurred more than one year prior to the filing of an administrative complaint with the DFEH are time-barred. Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th 52, 63 (2000).
To make a prima facie disability discrimination case under FEHA, Plaintiff must show he (1) had a disability; (2) was qualified for the position sought; (3) suffered an adverse employment action; and (4) his disability was a motivating reason for the adverse action. See Gardner v. City of Berkeley, 838 F. Supp. 2d 910, 922 (N.D. Cal. 2012) (citing Guz, 24 Cal. 4th at 354-55). FEHA lists several definitions of "physical disability," including being regarded or treated as having any physical condition that makes a major life activity difficult.
Defendant's motion for summary judgment on this claim fails as to these two incidents. Gardner v. City of Berkeley , 838 F.Supp.2d 910, 926–27 (N.D.Cal.2012) ; Plaza v. Comcast Cable Commc'ns Mgmt., LLC , No. 14–CV–5430 YGR, 2015 WL 7770215, at *3 (N.D.Cal. Dec. 3, 2015). V. MOTION TO AMEND COMPLAINT