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Tuesday, August 27, 2013

Acuna v. San Diego Gas & Electric: Court Rules On Statute Of Limitations For FEHA, Common Law Claims

Acuna v. San Diego Gas & Electric Co. (6/19/13, pub. 7/18/13) --- Cal.App.4th ---, addresses statute of limitations issues in the context of an ongoing employment relationship and the filing of three separate DFEH complaints: 
3/16/06: Esperanza Acuna files first DFEH complaint against San Diego Gas & Electric (SDG&E), alleging racial discrimination, harassment, and retaliation for having filed a worker's compensation claim.  
3/27/06: DFEH issues first right to sue letter (RTS) 
2/23/07: Acuna files second DFEH complaint, alleging disability discrimination.   
2/19/08: DFEH issues second RTS. 
7/11/08: SDG&E terminates Acuna's employment.  
10/23/08: Acuna files third DFEH complaint, alleging various wrongful acts, including her alleged retaliatory termination.  
11/7/08: DFEH issues third RTS.  
11/5/09: Acuna files suit. 
The trial court sustained SDG&E's demurrer without leave to amend, finding that her claims were time barred. The Court of Appeal affirmed in part and reversed in part, holding: 

Acuna's disability discrimination claim was barred because she did not file suit within one year of receiving her 2008 RTS. Acuna alleged disability discrimination in her second DFEH complaint and received her RTS on that issue more than one year before she filed suit. "By retaining counsel and filing a DFEH complaint, Acuna manifested an understanding that further attempts at informal, rather than formal, resolution of the disability accommodation process would not be successful and were futile." Slip op. at 16. 

The continuing violations doctrine did not apply, as, under the facts alleged, "no reasonable employee would have believed that further efforts at informal conciliation would be successful." Slip op. at 17. 

The equitable tolling doctrine also did not apply, as Acuna did not allege "any facts showing she was pursuing an alternate remedy that excused her from timely filing her administrative claim and/or from filing her lawsuit." Slip op. at 19. 

Acuna's disability discrimination claim was barred because she did not file suit within one year of receiving her 2006 RTS. The alleged racial discrimination took place years before Acuna filed suit, and she did not allege facts giving rise to the continuing violations doctrine or the equitable tolling doctrine. Slip op. at 20-21. 

Acuna's retaliation claim was timely. Acuna alleged that SDG&E terminated her on 7/11/08 in retaliation for protected conduct. She filed a timely DFEH complaint 10/23/08, less than one year after her termination. She received her RTS on 11/7/08, and filed suit on 11/5/09, less than one year later.  Slip op. at 21-24. 

Acuna's claim for wrongful termination in violation of public policy was "tethered to" her FEHA retaliation claim and also was timely. Slip op. at 24-25.  

Acuna's claims for breach of contract and breach of the covenant of good faith and fair dealing failed because Acuna did not provide factual information to overcome the presumption of at-will employment. Slip op. at 25-28. 

The opinion is available here

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