Labor & Employment Law Blog

A current or former employee who wishes to bring suit for alleged discrimination, harassment, or retaliation in violation of the Fair Employment and Housing Act ("FEHA") must first submit to the Department of Fair Employment and Housing a complaint.  Such complaints generally must be submitted to the DFEH within one year of the alleged discriminatory, harassing, or retaliating conduct.  If the complaint is timely submitted, the would-be plaintiff has one year from the date the DFEH provides to the would-be plaintiff a right-to-sue notice within which to file suit. 

In this case, the Court of Appeal affirmed the trial court's decision to grant summary judgment in favor of the employer and in favor of the plaintiff's supervisor who allegedly harassed and retaliated against the plaintiff because the plaintiff submitted the required pre-suit complaint to the DFEH more than one year after the last act of alleged harassment could have taken place based on the deposition testimony of the plaintiff.  

Significantly for employers defending such lawsuits, the Court of Appeal held also that the continuing violation doctrine, which "allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to the unlawful conduct within the limitations period," did not apply because the plaintiff failed to identify during her deposition any such conduct taking place within the one-year statute of limitations period (i.e., within the year preceding the date she first submitted to the DFEH her complaint).  The Court of Appeal held that the following conclusory statements contained in a declaration the plaintiff submitted after her deposition were not sufficient to defeat the employer's motion for summary judgment:  "From January 2007 through May 22, 2007, Allyn is not my manager at Beckman, but he is still harassing me," and Allyn was "running . . . roughshod" and "didn't have any boundaries."  In addition, the Court of Appeal held the fact that the plaintiff remained assigned to the allegedly harassing supervisor during the statute of limitations period without evidence of at least one act of harassment or retaliation by that allegedly harassing supervisor during the statute of limitations period was not sufficient to invoke the continuing violation doctrine. 

This case serves as a reminder there are sound reasons for an employer to take a proactive approach when an employee complains of or the employer otherwise learns of alleged harassment or retaliation.  To begin with, the law requires an employer to promptly investigate such conduct and to take reasonable steps to put a stop to it if it has occurred.  Further, putting a stop to such conduct if it has occurred starts the statute of limitations running and may provide the employer with a defense to later filed claims.