(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.)
In Birschtein v. New United Motor Manufacturing, Inc. (2002) 92 Cal.App. 4th 994, 1004, the California Court of Appeals noted that the foundation of the [California Supreme Court’s] rationale supporting application of the continuing violation doctrine in FEHA discrimination litigation is not so much accommodation itself as a process of conciliation. It is clear from these authorities that the statute of limitations on plaintiff’s claims did not begin running as soon as the City applied for involuntary retirement. The limitations period only began running when that decision had a permanence or finality attached to it, which was on the date of the formal discharge, or January 20, 2005. In other words, the conciliation efforts that intervened, including plaintiff filing a grievance over the retirement application, the requests for accommodation, the submission of new medical releases, the requests for a neutral and independent second medical opinion, and the repeated efforts to prompt a good faith interactive dialogue, delayed the running of the one-year statute of limitations period until well after June 10, 2004.
B. Plaintiff’s Disability Discrimination / Failure to Accommodate Claim
Plaintiffs failure to accommodate and failure to engage in the interactive process claim are also subject to the continuing violation doctrine. Indeed, in Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, the California Supreme Court specifically applied the continuing violation doctrine to a FEHA claim involving an alleged failure to accommodate a disability. The Court reasoned that the FEHA statute of limitations should not be interpreted to force upon a disabled employee engaged in the process of seeking reasonable accommodation the unappealing choice of resigning at the first sign of disability discrimination or, on the other hand, persisting in the reconciliation process and possibly forfeiting a valid claim should that process prove unsuccessful. See Yanowitz, supra, citing Richards, at 821.
Thus, the California Supreme Court has held that when an employer unlawfully refuses accommodation of a disabled employee, the statute of limitations begins to run either when the course of conduct is brought to an end, as by the employers cessation of such conduct or the employee’s resignation, or when the employer is on notice that further efforts to end the unlawful conduct will be in vain. Richards, supra, at 823.
Here, after plaintiff was found unfit as a Firefighter on April 6, 2004, he spent the next several months seeking accommodation. He contacted the Director of Human Resources, Roni Moore, as well as her assistant, Michelle Green, and told them that he did not want to be separated from his employment and would consider reassignment to another position if necessary. He also sought further accommodation on August 10, 2004, when he provided the City with complete medical release from his treating psychiatrist and asked to return from his medical leave of absence. He also made attempts to convince the City to send him to a neutral Agreed Medical Examiner, and these attempts were rejected on July 12, 2004 as well as in October of 2004. Plaintiff reasonably believed that these attempts might prove fruitful until well into the statutory period.
Clearly, under these circumstances, in which plaintiff tried in good faith to arrive at a conciliatory solution to his need for accommodation, the continuing violation doctrine is clearly applicable, which means that acts of disability discrimination during the period between February 9, 2004 and January 20, 2005, are all actionable. (See Part 15 of 19.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.