Opinion
G053955
10-19-2017
PATRICIA SALGADO, Plaintiff and Appellant, v. SANTA ANA UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
Stanton T. Mathews & Associates, Mathews Nissen and Andrew James Nissen for Plaintiff and Appellant. Declues Burkett & Thompson, Jeffrey P. Thompson and Fernando A. Vicente for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00749810) OPINION Appeal from a judgment of the Superior Court of Orange County, Walter P. Schwarm, Judge. Affirmed. Stanton T. Mathews & Associates, Mathews Nissen and Andrew James Nissen for Plaintiff and Appellant. Declues Burkett & Thompson, Jeffrey P. Thompson and Fernando A. Vicente for Defendant and Respondent.
Patricia Salgado appeals from a judgment after the trial court granted Santa Ana Unified School District's (SAUSD) summary judgment motion. Salgado argues the court erred because it failed to consider equitable tolling and continuing violations. Her contentions have no merit, and we affirm the judgment.
FACTS
Employment
In 1987, SAUSD hired Salgado as a substitute clerk. The following year, it hired her as a full-time clerk I, and in mid-2000's transferred her to the Regional Occupational Program (ROP) as a clerk II. She received positive evaluations during her employment.
In November 2012, Salgado and O.A. were present when another employee made a racial comment; O.A. reported the employee. Four months later, O.A. reported Salgado for creating a hostile work environment. A few days later, Salgado reported O.A. for improper conduct, including student endangerment, student privacy violations, and SAUSD rules and policies violations. SAUSD transferred Salgado from ROP to Esqueda Elementary School pending an investigation into her conduct. In August 2013, SAUSD suspended Salgado without pay for insubordination, willfully disobeying SAUSD rules and policies, and misusing SAUSD property. In January 2014, SAUSD terminated Salgado.
In her August 2013 notice of defense, Salgado admitted she misused SAUSD property and engaged in unprofessional and inappropriate conduct during work hours. In December 2013, a hearing officer recommended to SAUSD that Salgado be terminated. In her report, the hearing officer opined the timing of Salgado's complaint against O.A. and SAUSD's investigation of Salgado appeared to be "coincidental."
Administrative & Legal Proceedings
On August 25, 2014, Salgado's counsel requested a right-to-sue letter with the California Department of Fair Employment and Housing (DFEH). The request stated the most recent harm was August 26, 2013. Counsel sent the request certified mail. On August 28, 2014, DFEH received the request. The following day, DFEH denied the request because it was untimely.
On September 26, 2014, Salgado's counsel sent DFEH a letter that stated the request for a right-to-sue letter was timely because he sent it certified mail on August 25, 2014, one day before the one-year deadline. DFEH did not respond.
In October 2014, Salgado filed her complaint. SAUSD filed a demurrer and a motion to strike.
On March 31, 2015, Salgado's counsel e-mailed DFEH requesting a right-to-sue letter. Counsel detailed the case's history and stated he had not received a response to his September 2014 letter.
In April 2015, Salgado filed her first amended complaint alleging the following causes of action: harassment (Gov. Code, § 12940, subd. (j)); harassment (Cal. Const., art. 1, § 8); failure to prevent harassment (Gov. Code, § 12940, subd. (k)); retaliatory termination (Gov. Code, § 12940); and hostile work environment. SAUSD first filed a demurrer and then an answer.
On April 20, 2015, Salgado's counsel e-mailed Maria Gonzalez at DFEH requesting a right-to-sue letter, detailing the case's history, and indicating he left her a few telephone voicemails. Later the same day, Gonzalez responded by e-mail and said the request was untimely.
On May 4, 2015, Salgado's counsel e-mailed Gonzalez and informed her the deadline to file was January 29, 2015, one year from her termination date, not August 26, 2014, one year from her suspension date. Salgado's counsel sent similar letters to Gonzalez and others at DFEH on May 12 and 18, 2015.
On June 9, 2015, Salgado's counsel e-mailed Sonya Brown at DFEH with the original right-to-sue form and an updated form with the date January 29, 2014. In an e-mail, Brown responded that date was also untimely. Over the next week, Salgado's counsel staff exchanged e-mails with Brown, who told her she was waiting to hear from Gonzalez. On June 19, 2015, Gonzalez sent Salgado's counsel an e-mail stating both the original request and the updated request were untimely.
In November 2015, Salgado filed a motion for leave to amend requesting relief from the requirements of the Fair Employment and Housing Act (Gov. Code, § 12960) (FEHA) based on equitable tolling and continuing violations. The motion was supported by a declaration from Andrew J. Nissen, Salgado's counsel. Nissen stated that over the "weeks and months" since his September 2014 letter, he appealed the rejection via e-mail and telephone calls. He added, "[s]everal telephone agents at the [DFEH] . . . indicated that, given the facts presented herein, there should not be a problem issuing the [r]ight-to-[s]ue letter, but that they did not have the authority to issue the letter." Nissen stated those agents said only Gonzalez could generate such a letter. SAUSD filed an opposition.
At a hearing, Salgado's counsel stated DFEH agents assured him it would issue the right-to-sue letter but that only Gonzalez could issue it. When the court inquired who at DFEH assured him, counsel replied, "I don't have the exact name." The trial court denied Salgado's motion because equitable tolling and continuing violations did not apply. The court added, "The failure to timely file a charge of discrimination [with] DFEH and receive a [r]ight-to-[s]ue letter (a prerequisite to filing suit herein) was not the result of any assurances or misinformation supplied by the DFEH."
This court summarily denied Salgado's petition for writ of mandate challenging the court's ruling. (Salgado v. Superior Court (March 3, 2016, G053182) [nonpub. order].)
SAUSD filed a motion for summary judgment/summary adjudication on the grounds Salgado failed to exhaust administrative remedies. The motion was supported by points and authorities, a separate statement, declarations, notice of lodging exhibits, and request for judicial notice. Salgado filed an opposition, which was supported by a declaration, separate statement, and request for judicial notice. In her opposition, Salgado did not dispute she had not obtained a right-to-sue letter. Instead, she requested a continuance to obtain such a letter and file a writ with this court. Nissen submitted a declaration but offered no new facts. In her separate statement, Salgado stated her counsel had discussions with DFEH about the corrected date of harm before May 4, 2015, but she did not specify when. SAUSD filed a reply.
At a hearing, the trial court inquired whether there was an issue of fact as to jurisdiction. When the court stated to Salgado's counsel that he did not think there was a triable issue of fact whether the administrative remedies were timely exhausted, counsel replied, "Right." After counsel argued FEHA was liberally interpreted to reach the merits, the court inquired whether the issue was already litigated in the motion for leave to amend. Salgado's counsel responded, "It was." After Salgado's counsel drew a distinction between seeking affirmative relief and triable issue of fact, the following colloquy occurred:
"[Trial court]: Counsel, do you agree that there's no dispute that [Salgado] did not timely exhaust her administrative remedy? [¶] I understand your equitable argument, but
"[Salgado's counsel]: Yes.
"[Trial court]: -- Factually
"[Salgado's counsel]: Yes.
"[Trial court]: -- There does not appear to be a dispute as to that.
"[Salgado's counsel]: There isn't."
Later, the trial court granted SAUSD's motion for summary judgment because Salgado failed to exhaust administrative remedies. The court noted it granted her request for a three-week continuance to obtain a right-to-sue letter. The court ruled there was no triable issue of material fact because Salgado did not timely file a request with DFEH and consequently she did not obtain a right-to-sue letter from DFEH. The trial court entered judgment, and notice was given.
Salgado filed a motion for new trial. In her motion, Salgado contended insufficient evidence supported the trial court's ruling because she was diligent in exhausting her administrative remedies with DFEH. She also asserted there was new evidence. As to the new evidence, Salgado stated, "After further contact and diligence with [DFEH], no evidence or information was found as nothing does exist as to who made these representations on the telephone to [Salgado]. These facts were not presented in [her] [o]pposition, because the facts were unknown at the time." In his declaration, Nissen did not offer any new facts. SAUSD filed an opposition. The trial court denied Salgado's motion for new trial because there was "sufficient evidence of an undisputed failure to exhaust administrative remedies."
DISCUSSION
Salgado argues the trial court erred by granting SAUSD's motion for summary judgment because it did not consider equitable tolling and continuing violations. As we explain below, Salgado did not argue either issue. With respect to the equitable tolling issue, it was decided earlier and Salgado did not offer any new facts. As to the continuing violations issue, she did raise the issue at all.
The purpose of a motion for summary judgment is to discover whether the parties possess evidence that requires the fact-weighing procedures of a trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
Government Code section 12960 requires that an employee who intends to file suit under the FEHA must first exhaust administrative remedies. (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1412 (Acuna).) The applicable limitations period for FEHA claims is one year from the date the alleged unlawful practice occurred with certain statutory exceptions. (Gov. Code, § 12960, subd. (d); Cal. Code Regs., tit. 2, § 10009(e); Acuna, supra, 217 Cal.App.4th at p. 1412.) "Courts have referred to this . . . as a '"jurisdictional prerequisite."' [Citations.]" (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345.) A plaintiff must plead and prove timely exhaustion of administrative remedies or an applicable exception. (Ibid.; Holland v. Union Pacific Railroad Co. (2007) 154 Cal.App.4th 940, 945 (Holland).)
There are equitable exceptions to the one-year rule. One exception is when DFEH reasonably misleads the complainant who through no fault of his own relies on the inaccurate advice. (Holland, supra, 154 Cal.App.4th at p. 946; Cal. Code Regs., tit. 2, § 10018 ["The one-year time limit for filing a complaint of discrimination . . . may be tolled . . . where [DFEH] misleads the complainant about filing obligations, commits errors in processing the complaint, or improperly discourages or prevents the complainant from filing at all"].) Factors to consider are the following: (1) the plaintiff diligently pursued the claim; (2) DFEH misinformed or misled the plaintiff; (3) the plaintiff relied in fact on the misinformation or misrepresentations, causing him to fail to exhaust his administrative remedies; and (4) the plaintiff was acting pro se at the time. (Denney v. Universal City Studios, Inc. (1992) 10 Cal.App.4th 1226 (Denney), overruled on other grounds in City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1156, Rodriguez v. Airborne Express (9th Cir. 2001) 265 F.3d 890, 902.)
Here, Salgado did not offer any facts warranting relief for equitable tolling. In her original request for a right-to-sue-letter, Salgado, who was represented by counsel, stated the most recent harm was August 26, 2013. She mailed the request on August 25, 2014, one day before expiration of the one-year period. DFEH denied the request because it was untimely. It was not until later that Nissen claimed to have spoken with DFEH staff who assured him DFEH would issue Salgado a right-to-sue letter. The timing of the telephone calls is unclear.
After DFEH denied the request, Nissen sent DFEH a letter on September 26, 2014. In his declaration, Nissen stated that "[o]ver the next several weeks and months," he spoke with DFEH staff who assured him "there should not be a problem issuing the [r]ight-to[s]ue letter." But Nissen does not state who he spoke with or when he spoke with them. In her separate statement, Salgado stated Nissen spoke with DFEH "prior to May 4, 2015." In fact, the evidence demonstrated the next communication after the September 2014 letter was a March 31, 2015, e-mail from Nissen to DFEH. On May 4, 2015, Nissen e-mailed Gonzalez to tell her the actual last date of harm was January 29, 2014, Salgado's termination date. But assuming this was a new request for a right-to-sue letter, this too was past the one-year deadline. Based on this record, Salgado did not offer facts demonstrating DFEH misinformed or misled her. Any statements DFEH made were after Nissen filed the untimely request for a right-to-sue letter. (Holland, supra, 154 Cal.App.4th at p. 946 [plaintiff must submit facts establishing DFEH mislead or misinformed him].)
The trial court fully considered this issue during litigation of Salgado's motion for leave to amend. In her opposition to SAUSD's summary judgment motion, Salgado did not argue equitable tolling. Indeed, in his declaration, Nissen did not offer any new facts concerning equitable tolling. At the hearing on the summary judgment motion, Nissen agreed with the trial court that the issue was litigated in the motion for leave to amend and conceded there was no material issue of fact. Contrary to Salgado's contention otherwise, the trial court did not fail to address this issue.
In Denney, plaintiff in propria persona filled out an Equal Employment Opportunity Commission (EEOC) intake questionnaire three weeks after his termination alleging age discrimination, retaliation, and disability discrimination. (Denney, supra, 10 Cal.App.4th at pp. 1231-1232.) EEOC presented him with a formal complaint raising only age discrimination. (Ibid.) When he protested, he was told the single charge "was sufficient." (Id. at p. 1234.) Plaintiff later hired an attorney who recommended amending the charges, but that was after the one-year deadline. (Ibid.) The court held equity required tolling. (Ibid.)
In Holland, two months before the filing deadline, plaintiff, who was initially in propria persona, initiated the DFEH process and DFEH staff told plaintiff that he need not be concerned about the deadline. (Holland, supra, 154 Cal.App.4th at pp. 943, 947.) They also told him that although his interview was postponed until days before the deadline, his timely submission of a completed questionnaire was sufficient. (Ibid.) DFEH did not send plaintiff a formal complaint until after the one-year deadline. The court concluded equity required tolling. (Id. at p. 947.)
Here, unlike the plaintiffs in Denney and Holland, Salgado was represented by counsel at all times. Additionally, Salgado did not diligently pursue her claim, but instead waited until the eve of the one-year deadline. When DFEH rejected Salgado's claim, counsel did not diligently try to remedy the error. There is no evidence of any communications between September 2014 and March 2015. Finally, as we explain above, any statements made by DFEH did not misinform or mislead Salgado—any statements were made after Salgado filed her claim. Thus, Salgado did not carry her burden of demonstrating a material issue of fact regarding equitable tolling.
Another exception is the continuing violations exception. (Holland, supra, 154 Cal.App.4th at p. 946.) The limitations period for filing a DFEH administrative complaint of discrimination is tolled if an employer engages in ongoing violations of an employee's FEHA rights and the employer's actions over time: (1) are "sufficiently similar in kind"; (2) "occurred with reasonable frequency"; and (3) "have not acquired a degree of permanence." (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 801, 823.)
Here, Salgado raised continuing violations in her motion for leave to amend, but the trial court ruled it was inapplicable. In her opposition to SAUSD's motion for summary judgment, Salgado did not raise continuing violations. Therefore, we decline to address it. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-32 [issue waived on appeal where not raised below in opposition to motion for summary judgment].) In any event, Salgado has not carried her burden of offering evidence of similar, frequent, and permanent improper actions by SAUSD. Therefore, the trial court properly granted SAUSD's summary judgment.
In its respondent's brief, SAUSD makes this point. Unfortunately, Salgado does not address it in her reply brief.
Because we conclude the trial court properly granted summary judgment due to Salgado's failure to exhaust administrative remedies, we need not address SAUSD's contentions the statute of limitations and collateral estoppel bar her complaint.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
O'LEARY, P. J. WE CONCUR: IKOLA, J. THOMPSON, J.