Bias Lawsuit Filed One Day After Expiration of Statute of Limitations Might Go Forward

​The trial court was not required to dismiss a race and age bias lawsuit brought under California's Fair Employment and Housing Act (FEHA) that was filed one day after FEHA's statute of limitations expired, a California appeals court ruled. The lower court had discretion to entertain the lawsuit under the doctrine of equitable tolling, the appellate court said.

In 2017, the then 54-year-old plaintiff interviewed for an instructor position with a community college district. He gave a mock teaching presentation and met with members of the college's hiring committee.

The plaintiff alleged he interviewed well but was notified in April 2017 he was not selected for the position, and no one was ultimately hired. Although he did not suspect any unlawful discrimination when he was notified that he did not get the job, he claimed that 14 months later, in June 2018, a member of the college's hiring committee informed him he had not been chosen because of his race and age.

Within two weeks of receiving this information, the plaintiff filed an administrative complaint with the California Department of Fair Employment and Housing (DFEH). The DFEH issued him a June 29, 2018, right-to-sue notice that accurately stated he had one year from then to timely file a lawsuit for causes of action under FEHA. Because the date fell on a Saturday, the last day for the plaintiff to file FEHA claims was Monday, July 1, 2019.

Several weeks after receiving the DFEH's right-to-sue notice, the plaintiff presented a claim for damages to the college district based on California's Government Claims Act (GCA). In addition to his claims of race and age discrimination under FEHA, the plaintiff was claiming negligent and intentional infliction of emotional distress under the GCA.

The district rejected the claim on Sept. 11, 2018, as untimely because it was not filed within the six-month period permitted by the GCA. The letter did not mention FEHA but told the plaintiff that he could appeal to the district for permission to present a late claim.

The plaintiff's lawyer followed the additional GCA procedures outlined in the district's rejection letter. A hearing on the plaintiff's request to file a late claim was eventually held, and on Friday, June 28, 2019, the court granted him approval to file a late claim. 

On July 2, 2019, the plaintiff filed all his claims, but the trial court rejected the FEHA claims as untimely, refusing to apply the doctrine of equitable tolling.

The plaintiff appealed.

The appellate court reversed the dismissal, sending the case back to the lower court.

Equitable Tolling Principles

The appellate court first noted that California law allows courts to determine on a case-by-case basis whether equitable tolling is warranted under the facts presented, with careful consideration of the policies underlying the doctrine.

The equitable tolling of statutes of limitations is designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations—timely notice to the defendant of the plaintiff's claims—has been satisfied, the court said.

When applicable, the doctrine will suspend or extend a statute of limitations as necessary to ensure fundamental fairness.

Three essential elements must be satisfied in any application of equitable tolling, the court explained:

• Timely notice.
• Lack of harm to the defendant.
• Reasonable and good faith conduct on the part of the plaintiff.

The court then found that the plaintiff clearly established the first two elements. No less than 10 months before the FEHA lawsuit deadline occurred, the plaintiff's 2018 claim presentation to the district fully notified the defendant of the plaintiff's intention to file suit. The defendant received adequate notice and could not reasonably claim it was harmed in its ability to defend the lawsuit.

As to whether the plaintiff's conduct was reasonable and in good faith, the appeals court noted that the trial court had considered only the plaintiff's conduct in the five days between the court's June 2019 decision and the filing of his lawsuit.

The trial court should also have considered whether to apply equitable tolling based on other time intervals preceding the five-day interval, the appeals court said. The GCA requires that, before a plaintiff goes to court, the claims first must be presented to the government entity being sued. FEHA claims are not subject to the GCA's presentation requirements.

The appeals court said the focus should be not on whether the plaintiff correctly pursued an alternative remedy before filing his lawsuit, but on whether that pursuit was objectively reasonable and subjectively done in good faith.

The court therefore sent the lawsuit back to the trial court to reconsider whether the FEHA claims should be allowed to proceed based on equitable tolling.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.