Opinion
A099619.
7-9-2003
JAMES MILES, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS et al., Defendants and Respondents.
Plaintiff James Miles stated in his "introduction" to the complaint filed in state court that he "originally filed this complaint in federal court, alleging disability discrimination and retaliation in violation of the Americans [sic] with Disabilities Act. 42 U.S.C. § 12101 et seq. At the time the complaint was filed, the Ninth Circuit U.S. Court of Appeals held that a state was subject to suit in federal court for violations of the Americans with Disabilities Act. Clark v. State of California, 123 F.3d 1267 (9th Cir. 1997). Subsequently, the United States Supreme Court held that states are immune from suit under the Americans with Disabilities Act. Board of Trustees v. [Garrett , 531 U.S. 356, 148 L. Ed. 2d 866, 121 S. Ct. 955] (2001). Accordingly, on May 31, 2001, the Ninth Circuit Court of Appeals dismissed the federal action without prejudice to Miles[s] right to seek any available relief in state court. [P] Plaintiff now brings suit in state court alleging the same disability discrimination and retaliation in violation of Californias Fair Employment and Housing Act. Cal. Gov. Code §§ 12940, et seq. These state claims were equitably tolled during the pendency of Miles[s] federal action." The accuracy of this final sentence is the subject of this appeal.
Plaintiffs complaint (subsequently amended) was filed in state court in June of 2001. Defendants demurred on various grounds; the one germane to this appeal was that the state court "has no jurisdiction of the whole complaint because it is untimely," that is, the governing statute of limitations (Gov. Code, § 12965, subd. (b)) had expired while plaintiff was in federal court. Plaintiff responded that the statute of limitations period was equitably tolled while the federal action was pending. After the trial court overruled the demurrer, defendants petitioned this court for extraordinary relief. We ordered issuance of an alternative writ of mandate, noting that at the time the trial court ruled on the demurrer it "did not have the benefit of the decision in Raygor v. Regents of University of Minnesota (2002) 534 U.S. 533, 152 L. Ed. 2d 27, 122 S. Ct. 999. . . . During the pendency of these original proceedings, the United States Supreme Court decided in Raygor . . . that 28 U.S.C. § 1367(d) does not toll the period of limitations for state law claims asserted against nonconsenting state defendants that are dismissed on Eleventh Amendment grounds. Under these circumstances we find it appropriate to return this case to respondent superior court for reconsideration in light of the Raygor decision."
Upon reconsideration, the trial court found that Raygor was "controlling," that "the doctrine of equitable tolling does not apply," and that consequently "Plaintiffs action for violation of the California Fair Employment and Housing Act is barred by the Statute of Limitations under Government Code section 12965 , subdivision (b)." Plaintiff perfected this timely appeal from the judgment dismissing his complaint.
Upon being advised of the trial courts action, we discharged the alternative writ and dismissed defendants petition for extraordinary relief.
Two matters about the trial courts ruling require brief comment. First, the courts conclusion that Raygor is "controlling" is correct, but only in a limited sense. All Raygor held was that a specific federal statute (28 U.S.C. § 1367) did not, in and by itself, toll the limitation periods for state law actions filed in federal courts against state defendants; Raygor did not address the issue of whether or how state law tolling principles might operate. Plaintiff makes no attempt to argue to the contrary or otherwise rely on federal law. State law is the sole basis for his assertion that the judgment should be reversed. Second, we do not interpret the courts statement that "the doctrine of equitable tolling does not apply" as meaning that equitable tolling is categorically unavailable. That the doctrine is applicable to litigants in plaintiffs situation is now established. (See Bonifield v. County of Nevada (2001) 94 Cal.App.4th 298, 304-306; Kolani v. Gluska (1998) 64 Cal.App.4th 402, 407-410; see also Kendrick v. City of Eureka (2000) 82 Cal.App.4th 364, 369, fn. 2 [dictum].) We therefore construe the trial courts statement as meaning only that on the facts of this case the doctrine of equitable tolling does not apply to this plaintiff.
Because we are reviewing a dismissal entered after a general demurrer was sustained without leave to amend, it is appropriate to summarize the allegations of plaintiffs amended complaint, accepting the factual recitals as true. (E.g., Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967, 831 P.2d 317.) Plaintiff alleged that he has been an employee of the California Department of Corrections since 1983. While working at the California Medical Facility (CMF) in Vacaville in 1993, plaintiff injured his knee, neck, and lower back. He was on medical leave until May of 1994, when he returned to work in a gun tower at CMF. In May and August of 1994, plaintiff had operations performed on his knee, causing him to be off work on disability leave from May, 1994 through March, 1995. Plaintiff returned to work in late March of 1995. CMF, however, refused to assign him to "restricted duty" or "special assignments to employees with medical limitations," contrary to its custom. CMF advised plaintiff that "correctional officers are not entitled to reasonable accommodations." In August of 1995, CMF placed plaintiff "off work" and "would not permit [him] to work at all, with or without accommodation in violation of law and in violation of CMFs [own] policies and practices."
Plaintiff further alleged that he "was essentially unemployed and without pay from August, 1995 to January 15, 1998. During this period, Defendant refused to accommodate Miles or allow him to return to work" and deprived him of "benefits that he would otherwise be entitled to as a correction officer." After plaintiff "filed a charge of disability discrimination" in December of 1995, CMF "encouraged Miles to resign" and to apply to "PERS for disability retirement." Plaintiff did so in December of 1996, shortly after plaintiff "filed suit in federal court alleging disability discrimination." Meanwhile, CMF initiated criminal charges and an internal investigation of plaintiff for "workers compensation fraud." The investigation was "closed for lack of evidence" and the criminal proceeding was dismissed for the same reason. After PERS denied his application and determined that he could return to work, plaintiff, in December of 1997 "demanded that CMF reinstate him to his position as a correctional officer." Although three of four physicians who examined him found him fit for full duty, plaintiff was thereafter "medically demoted" by CMF.
The Fair Employment and Housing Act (FEHA) specifies that suit must be instituted within one year of the plaintiff receiving a so-called "right-to-sue letter" from the Department of Fair Employment and Housing (DFEH). (Gov. Code, § 12965, subd. (b).) Plaintiff received two such letters, the first dated January 3, 1996, the second dated May 27, 1998. Plaintiff implicitly concedes that his state court complaint was not filed in a timely fashion unless he receives the benefit of equitable tolling.
Plaintiffs first complaint to the DFEH, dated December 20, 1995, claimed he was the victim of discrimination because CMF had denied "a reasonable accommodation of reassignment." His second complaint, dated May 26, 1998, covered plaintiffs having been "unfairly investigated," refused "reasonable accommodation for my disability," and CMFs "acts of retaliation" after plaintiff filed his federal lawsuit.
It appears that plaintiff was also filing complaints with the federal Equal Employment Opportunity Commission (EEOC). Plaintiffs first complaint to the EEOC was made on December 5, 1996, the second on May 26, 1998. The EEOCs "right-to-sue" letters are dated February 27, 1997, and September 9, 1998. The quotations in the preceding paragraph are actually from plaintiffs complaints to the EEOC. The "right-to-sue" letters from the DFEH each state that "the subject complaint is being referred" to the DFEH by the EEOC. It is therefore reasonable to conclude that the complaints filed by plaintiff with the EEOC are the same as those considered by the DFEH. The DFEH letters also advised plaintiff that the EEOC "will be responsible for the processing of this complaint. That agency should be contacted directly for any discussion of resolution of the charge. The DFEH is closing its case on the basis of processing waived to another agency. " The relationship between the two agencies thus appears to be the same type of work-sharing agreement described in Downs v. Department of Water & Power (1997) 58 Cal.App.4th 1093, 1097.
Of relatively recent origin, the doctrine of equitable tolling halts the running of a statute of limitations period. The most frequently quoted formulation of the doctrine is from Justice Kaufman in Myers v. County of Orange (1970) 6 Cal. App. 3d 626, 634, 86 Cal. Rptr. 198: "When an injured person has several legal remedies and, reasonably and in good faith, pursues one designed to lessen the extent of the injury or damages, the statute of limitations does not run on the other while he is thus pursuing the one . . . ." (See, e.g., Addison v. State of California (1978) 21 Cal.3d 313, 317-318, 146 Cal. Rptr. 224, 578 P.2d 941; Elkins v. Derby (1974) 12 Cal.3d 410, 414-416, 115 Cal. Rptr. 641, 525 P.2d 81; Collier v. City of Pasadena (1983) 142 Cal. App. 3d 917, 922-923, 191 Cal. Rptr. 681.)
The Attorney General, representing defendants, argues in effect that there is no need to reach the issue of equitable tolling because standard statute of limitations analysis will demonstrate that the substance of plaintiffs state court complaint is untimely. The Attorney General reasons as follows: After plaintiff received the first "right-to-sue" letter from DFEH on January 3, 1996, the one-year period for initiating litigation began running. Because plaintiff also filed a complaint with the EEOC (see fn. 2, ante), defendants acknowledge that the one-year period commenced only after plaintiff had received "right-to-sue" letters from both DFEH and the EEOC. (See Downs v. Department of Water & Power, supra, 58 Cal.App.4th 1093, 1101-1103.) The EEOCs letter is dated February 27, 1997. Plaintiff thereafter had one year from that date within which to commence litigation based on any claimed violation of FEHA. Plaintiff was already in federal court, but he did not raise FEHA claims until September 23, 1998, when he amended his federal complaint. He thus missed the one-year deadline established by FEHA by almost seven months. Noting that plaintiff did not bring his complaint into state court until June of 2001, the Attorney General concludes that the statute of limitations on Miless first DFEH charge expired before he ever asserted any FEHA claims before any court."
Plaintiffs initial complaint was filed in federal court on December 9, 1996.
With respect to plaintiffs second (and broader) administrative complaint (see fn. 2, ante), the Attorney General points out that the DFEH "right-to-sue" letter was sent on May 27, 1998, and the EEOCs letter on September 9, 1998, and "again giving Miles the benefit of Downs, supra," the one-year period established by Government Code section 12965, subdivision (b), would expire on September 9, 1999. "Even if the statute of limitations on [plaintiffs] second administrative complaint was tolled during the period of time Miless FEHA claims were pending in federal court, from September 23, 1998, until January 28, 1999 [when they were dismissed by the federal district court], the statute of limitations ran before he re-filed in state court on June 21, 2001. Under this scenario, the statute of limitations on Miless second charge of discrimination ran from September 9, 1998, until September 23, 1998, and from January 28, 1999, until it expired 351 days later on January 14, 2000," more than six months before plaintiff filed his complaint in state court.
The Attorney General is partly correct. The chronology of plaintiffs actions shows that plaintiff did not raise any FEHA-based claims in federal court until September 23, 1998, long after the limitation period for matters set out in his initial complaint to the DFEH and the EEOC had expired. As to matters covered by that complaint, the Attorney General is correct that any FEHA-based claim by plaintiff is time-barred by Government Code section 12965, subdivision (b). As this conclusion appears as a matter of law, and because plaintiff had not yet resorted to state court, no question of equitable tolling is presented.
Matters covered by the second of the complaints plaintiff made to the DFEH and the EEOC stand on a different plane. The one-year period for commencing suit started running on September 9, 1998. (Downs v. Department of Water & Power, supra, 58 Cal.App.4th 1093, 1101-1103; see fn. 2, ante.) Plaintiff first amended his federal complaint to allege his FEHA claims a mere two weeks later. At the time he did so the ruling precedent of the Ninth Circuit allowed plaintiff a federal forum for those claims. When those claims were dismissed by the district court on January 28, 1999, he sought to have the dismissal reversed by the Ninth Circuit. It was reasonable for plaintiff to pursue that course before the United States Supreme Court decision in Garrett overturned the Ninth Circuit precedent on which plaintiff was relying. It was on May 31, 2001, that the Ninth Circuit, in submission to Garrett, ordered plaintiffs federal action dismissed. Exactly one month later, plaintiff filed his complaint in state court. As plaintiffs counsel pointed out at oral argument, he could not accept the risk of having the underling issue precluded forever under principles of either res judicata or collateral estoppel. Because plaintiff was acting "reasonably and in good faith" (Myers v. County of Orange, supra, 6 Cal. App. 3d 626, 634), the period from the filing of his amended federal complaint to add the FEHA-based claims, up to May 31, 2001, is equitably tolled in plaintiffs favor. The complaint he filed in state court was well within the period established by Government Code section 12965, subdivision (b).
In light of the foregoing, we must conclude that although the causes of action based on the first of his two FEHA claims were time-barred, those based on the second of his FEHA claims were not. Accordingly, the trial court erred in sustaining defendants general demurrer to the entirety of plaintiffs complaint without granting leave to amend. The judgment of dismissal must be reversed. The parties shall bear their respective costs of appeal.
We concur: Sepulveda, J., and Rivera, J.