(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)
ACTS OCCURRING PRIOR TO JUNE 10, 2004 ARE ACTIONABLE UNDER THE CONTINUING VIOLATION DOCTRINE
The defendant concedes that evidence of retaliation or discrimination outside the technical limitation period may still be actionable under the continuing violation doctrine. Here, there was extensive evidence to justify the jury’s application of the continuing violation doctrine.
A. Plaintiffs Retaliation and Disability Discrimination Claim.
It should be noted that plaintiff’s retaliation and disability discrimination claims were not based on one discrete act of retaliation or discrimination. Rather, his claims were based on a series of retaliatory and discriminatory acts that ultimately led to the formal end of his employment on January 20, 2005. As noted by the California Supreme Court in Yanowitz; there is no requirement that the employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries. Id, at 1055. Plaintiffs employment did not end abruptly-it unraveled slowly based on a series of related acts that were intended to prevent him from returning to work.In Yanowitz, the plaintiff alleged that she had suffered a series of retaliatory acts. The defendant contended that retaliatory acts that occurred prior to 1-year before the filing of her DFEH administrative charge were barred by the statute of limitations set forth in Government Code §12960(d). The Yanowitz Court disagreed, finding that the continuing violation doctrine applied to claims of retaliation that are based on a series of unlawful acts, some of which are within the limitations period. The Court held that retaliation claims based on a series of related acts constitute a continuing violation if they meet the following requirements: (1) the acts are sufficiently similar in kind; (2) have occurred with reasonable frequency; and (3) have not acquired a degree of permanence. Id., at 1058.
Here, plaintiff filed his DFEH charge on June 10, 2005. Plaintiff proved at trial that he experienced a series of interconnected discriminatory and retaliatory acts that occurred both within the one-year limitation period and outside the limitation period. With respect to the continuing violation doctrine, the jury was instructed on the Yanowitz requirements as follows:
Plaintiff asserts that he’s been the victim of discrimination and retaliation over a period of time that extends beyond the statutory one-year limitations period. In order for plaintiff to assert a continuing violation, plaintiff must establish that at least one of the alleged unlawful actions occurred within one year of the filing of his discrimination claim and that the alleged unlawful actions are: (1) sufficiently similar in kind; (2) have occurred with reasonable frequency; and (3) have not acquired a degree of permanence.
As described below, the jury in this case had ample evidence to find a continuing violation under the framework laid out in Yanowitz. (See Part 10 of 19.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.