Under California law, before filing a lawsuit for harassment, discrimination or retaliation, you must file an administrative complaint with the Department of Fair Employment & Housing (“DFEH”). The administrative complaint must be filed within one year of the date on which the unlawful practice occurred. Cal. Gov. Code § 12960(d).
The California Supreme Court has made clear, however, that the “continuing violation doctrine” may apply to a claim for retaliation, which allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period. But the Fourth District Court of Appeal in Trovato v. Beckman Coulter, Inc., 2011 WL 18819 (Jan. 5, 2011), recently held that if a party wishes to rely on the continuing violation doctrine, they better be prepared to offer competentevidence that the conduct occurring outside of the statute of limitations is in fact sufficiently connected to the unlawful conduct within the limitations period.
In Trovato, according to the undisputed evidence, the last act of alleged harassment and retaliation against the employee, occurred on or about January 31, 2007, when the alleged harasser gave the employee her performance review. Therefore, the employee’s administrative complaint had to be filed within one year from January 31, 2007. The employee’s administrative complaint, however, was filed with the DFEH on May 8, 2008, more than three months too late.
In attempting to use the continuing violation doctrine, the employee submitted a conclusory declaration that she continued to report to the alleged harasser after January 31, 2007, until she resigned in May 2007, and that this alone was sufficient to connect it to the unlawful conduct within the limitations period. The court found that the employee did not identify any specific acts of harassment or retaliation occurring after January 31, 2007. In contradiction to the conclusory statements in her declaration, the employee had earlier testified at her deposition that no specific acts of harassment or retaliation occurred after January 31, 2007. The Court found that it was “clear the statute of limitations ran on her claims.”
What does this mean? If you are planning on relying on the continuing violation doctrine, you better be prepared to back it up with competent evidence that the conduct occurring outside of the statute of limitations is in fact sufficiently connected to the unlawful conduct within the limitations period.