Continuing violation theory cannot save jury verdict in favor of employee.
The Second District Court of Appeal recently decided whether deadlines on pursuing discrimination, harassment, and retaliation claims in court required the overturning of a jury verdict in favor of an employee. In Jumaane v. City of Los Angeles (Cal. App. 2d Dist. Nov. 10, 2015) 2015 Cal. App. LEXIS 1000, the court determined which of Mr. Jumaane’s claims were too old before he began his case, and whether any timely conduct could possibly support a valid claim.
Mr. Jumaane is an African-American firefighter for the City of Los Angeles. In 2003, he sued his employer for race discrimination, racial harassment, and retaliation. The case went to trial at which the jury found in favor of the City of Los Angeles. Mr. Jumaane successfully appealed the verdict on grounds of juror misconduct. In 2013, the case went to trial again. The jury found in favor of Mr. Jumaane for disparate impact discrimination, harassment, and retaliation; and in favor of the City of Los Angeles for Mr. Jumaane’s disparate treatment discrimination claim.
The City of Los Angeles requested that the trial court find in its favor on all of the claims notwithstanding the jury verdict. It contended that the conduct supporting Mr. Jumaane’s claims took place more than more year before he started his case by filing with the Department of Fair Employment and Housing (statute of limitations). The trial court denied the request.
On appeal, the court began with a review of the one year statute of limitations, and an exception known as the “continuing violations doctrine.” Under this doctrine, which has been applied in disability accommodation, harassment, and retaliation claims, the employee must show that an employer’s conduct that began outside of the limitations period continued into that period. In addition, the timely conduct must be similar or related to the earlier conduct, the conduct must be reasonably frequent, and the conduct cannot become “permanent” outside of the limitations period. Permanence occurs when the conduct ends (e.g., the employer stops what it is doing or the employee resigns) or the employee is on notice that further efforts to end the conduct will be in vain.
The appellate court found that the evidence, viewed in the light most favorable to Mr. Jumaane, supported a finding of harassment and retaliation in the 1990s but that Mr. Jumaane knew by June 1999 when he served a suspension that future efforts to stop the conduct would be in vain. The court pointed to his testimony that by the time of his suspension he believed his employer was discriminating against him and he no longer had any hope that anyone would listen to reason. Consequently, any conduct prior to the June 1999 suspension could not be part of any continuing violation.
The court of appeal turned next to Mr. Jumaane’s disparate impact claim. The basis of this claim—which does not require proof of intentional discrimination (disparate treatment)—is the allegation that his employer’s disciplinary policy disproportionately and adversely impacts African-American employees. Disparate impact claims are usually proved through statistical evidence. The court found that Mr. Jumaane failed to present adequate statistical evidence. Although he offered affirmative action audits for the period 1990 to 1992, the appellate court concluded that they were not sufficient statistical evidence for that period and were not relevant to the period of 1998 and later when Mr. Jumaane’s claims arose.
As for Mr. Jumaane’s racial harassment claim, the court of appeal found that while there was evidence of harassment before 2000, the only timely incident in the record was a suspension in April 2001. That incident, however, could not support a harassment claim because it was a personnel management action. Harassment, in contrast, is conduct that does not serve any business or personnel management purposes.
Finally, the court of appeal reviewed Mr. Jumaane’s retaliation claim. It assumed that there was evidence of a causal link between the April 2001 suspension and Mr. Jumaane’s reports of discrimination (prima facie case). Nevertheless, the appeals court concluded that there was no evidence to undermine the City of Los Angeles’s evidence that the suspension was for non-retaliatory reasons. The court of appeal limited its analysis to Mr. Jumanne’s purported burden to establish that the City’s explanation was pretext for retaliation.
In so doing, the appeals court erred in two respects. First, the prima facie case-employer explanation-employee rebuttal analysis is not appropriate for trial (rather, only for the pre-trial stage of summary judgment). Second, even if this analysis was appropriate, the court considered only the question of pretext. Other decisions by appellate courts have criticized this flawed method of analysis. The proper standard for the employee rebuttal stage is evidence to show that unlawful retaliation more likely was the motivation, with pretext being only one way to make this showing.