(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.)
THE STATUTE OF LIMITATIONS WAS TOLLED WHILE PLAINTIFF FOUGHT FOR HIS JOB
A. Retaliation and Discrimination
In Yanowitz, the California Supreme Court held that in a retaliation case.. the statute of limitations begins to run when an alleged adverse employment action acquires some degree of permanence or finality. Id., at 1058. In other words, the statute did not begin running as soon as plaintiff was sent to a fitness for duty exam, or as soon as the City applied for an involuntary retirement. The statute only began running once those acts acquired some degree of permanence or finality. Unlike a straight termination, where the damage is immediate and permanent, the damage caused by the City’s acts was not permanent or final at the time that they occurred. Plaintiff remained an employee of the City of Sacramento, even after the retirement application was submitted on April 26, 2004. Plaintiff made realistic efforts to make sure that the City’s retaliatory acts did not become permanent or final.
There was no “permanence” to his predicament until plaintiff was formally retired in January of 2005. Prior to that, Plaintiff remained an employee, and he did everything in his power to return to work. That is, he did everything he could to make sure that his predicament didn’t become permanent. He made good faith attempts to overturn the impact of the fitness-for-duty evaluation by submitting notes from his doctor indicating that his mental health issues were in remission. He filed a grievance challenging the fitness for duty evaluation. He made good faith efforts to convince the City to send him to an independent physician for evaluation of his working capacity.
He requested reassignment as an accommodation, pointing out that he had other talents outside of firefighting. Likewise, he made good faith efforts to convince the City to retract its retirement application. None of this worked, but it was reasonable for plaintiff to fight for his job to stave off the permanence of the City’s actions. (See Part 13 of 19.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.