Mark I. Schickman, Editor and Cathleen Yonahara, Assistant Editor
Freeland Cooper & Foreman LLP

Vol. 17, No. 23
February 11, 2008

STATUTE OF LIMITATIONS

Employee's discrimination claims weren't time-barred

Michael Futterman

A nursing instructor sued her employer for race and age discrimination under California's Fair Employment and Housing Act (FEHA). The court of appeal ruled that the claim wasn't time-barred because the employer had performed additional discriminatory acts during the limitations period ― within one year after the employee filed an administrative complaint with the Department of Fair Employment and Housing (DFEH). In addition, the court said that evidence of discriminatory statements made before the limitations period could be used to prove that the employer's later decisions were based on prohibited motives.

County supervisor reduces nurse's teaching load

Yvonne Hammond worked as a nursing instructor for Los Angeles County. She spent 25 to 30 hours per week teaching classes at the county's Medical Staff Development Unit until the county hired Betty Brennan as her supervisor in late 2001. Hammond claimed that Brennan asked her to "demote" herself from nursing instructor to a position as staff nurse because she was "too old" to be in the classroom. Brennan hired younger nurses to teach classes, and according to Hammond, she refused to assign her any classes to teach. In fact, Hammond taught very few classes over the next few years. In mid-2004, a new nursing director gave her more assignments ― but still at a level below her previous course load.

Hammond was the only African American among the four nursing instructors on staff. She claimed that on the few occasions she was allowed to teach, Brennan monitored her classroom performance but didn't similarly monitor the other instructors. She also asserted that Brennan repeatedly made racist remarks in her presence, referring to other African-American employees as "dumb" and once saying that she couldn't understand Hammond because she was probably speaking "Ebonics."

Hammond filed several internal complaints about Brennan's conduct. The county conducted an investigation. Brennan denied reducing Hammond's teaching assignments and singling her out for classroom monitoring. In June 2004, the county sustained Hammond's charges and told her that appropriate administrative action had been taken.

Hammond filed a complaint with the DFEH in July 2004. She then sued the county and Brennan under the FEHA for age and race discrimination, harassment, and retaliation.

The trial court denied Hammond's claims and dismissed her case. The court found that her claims were barred by the statute of limitations because they were based on acts that occurred before July 1, 2003, one year before she filed her DFEH complaint. The court also found that even if she had her teaching assignments taken away, that didn't constitute an "adverse employment action" and that the racially derogatory comments weren't so "severe and pervasive" that they violated the FEHA.

The court of appeal reversed the trial court and found that Hammond had the right to have her claims heard by a jury.

Statute of limitations didn't bar claims

The county and Brennan claimed that because Hammond's teaching duties were eliminated before July 2003, even though her status remained unchanged after that date, she didn't suffer any adverse employment action during the one-year limitations period before she filed her DFEH complaint. The court of appeal disagreed. It noted that the reduction in her teaching assignments continued after July 2003. In effect, each time Brennan decided not to assign her classes to teach could be characterized as a discrete adverse employment action and would create a claim if the decision was based on a prohibited motive.

The court of appeal distinguished this case from the U.S. Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. In that case, an employee claimed that her employer gave her poor performance evaluations based on her sex. The performance evaluations were time-barred under the statute of limitations, but she argued that her claim was timely because the poor evaluations effectively resulted in her receiving lower pay during the limitations period. The Supreme Court rejected the employee's argument, holding that her failure to receive higher pay was a continuation of her damages, not a discrete "adverse employment action" occurring within the limitations period.

By contrast, each time Brennan decided not to assign Hammond classes to teach could be a discrete act of discrimination. Because some of those decisions occurred within the limitations period, Hammond's claim wasn't time-barred.

Prohibited motive

The county and Brennan also argued that to the extent that Brennan's comments about Hammond's age and race occurred before July 2003, they couldn't be used to prove that Brennan's decisions taken after that date were due to a "prohibited motive." The court of appeal rejected that argument. The court held that evidence of adverse employment actions based on prohibited motives occurring before the limitations period could be introduced as "background evidence" to show that adverse actions taken during the limitations period also were based on prohibited motives. As the court put it, if Brennan's initial decision to remove Hammond from the classroom was "tainted" by a prohibited motive, the jury could infer that subsequent decisions were similarly motivated. Hammond v. County of Los Angeles (Court of Appeal, Second Appellate District, 1/18/08).

Bottom line

An employee can rely on conduct and improper statements that might otherwise be barred by the statute of limitations if one or more acts in a series of adverse employment decisions occur within the period of limitations. You need to take proactive steps to prevent this type of conduct before it starts by creating an employment culture that respects diversity, establishing and enforcing policies that bar discriminatory and harassing behavior, and thoroughly investigating any complaints and taking prompt remedial action.

The author can be contacted at Futterman & Dupree LLP in San Francisco, mfutterman@dfdlaw.com.

Copyright 2008 M. Lee Smith Publishers LLC

The contents of CALIFORNIA EMPLOYMENT LAW LETTER are intended for general information and should not be construed as legal advice or opinion. Readers in need of legal advice should retain the services of competent counsel. The State Bar of California does not designate attorneys as board certified in labor law.