JONES v. TRACY SCHOOL DISTRICT (1979)

Plaintiff seeks back pay under Labor Code section 1197.5, which requires equal pay for equal work without regard to the sex of the employee. Plaintiff's motion for summary judgment was granted, but recovery was limited to the differential in wages for a two-year period prior to the commencement of the action as set forth in said section. Plaintiff appeals the judgment.

The facts in this case are not in dispute. In 1964, plaintiff was hired by defendant as a custodian. For four years, until 1968, plaintiff was paid the same wages as her male counterparts. In 1968, plaintiff's pay range was reduced to range 27 from range 29, and her title was changed to custodial matron. Plaintiff's pay was upgraded to range 29 in 1974. In June 1974, plaintiff secured aid from the United States Department of Labor, who estimated a wage loss of $1,838. Defendant was requested to pay this amount to plaintiff and defendant forwarded a check for $538.30, representing what defendant believed was actually due. Plaintiff refused the check, again requesting $1,838. On July 8, 1975, plaintiff filed suit. Final judgment for plaintiff was in the amount of $318.58.

We are asked to determine the size of the recovery allowed by Labor Code section 1197.5, and to decide the availability of attorney's fees under that section. Plaintiff contends full recovery of all back wages for the entire period, 1968-1974, is mandated by this section, and argues the statute of limitations applicable to such actions (Lab.Code, s 1197.5, subd. (h)) does not limit this recovery.¹

Plaintiff bases her argument on the words “balance of wages” in subdivision (g). She asserts these words mean the difference between what should have been paid, and what was paid, beginning from the first day of discrimination. Defendant would limit recovery to the difference in wages paid within two years of commencing the action. We shall affirm the judgment.

The complaint states a cause of action under Labor Code section 1197.5 for money due and owing as back wages earned but unpaid due to a discriminatory pay classification. (Lab.Code, s 1197.5, subds. (a), (b), (f), (g) and (h).) Under such a cause of action, a new right arises each time equal work is performed and unequal pay received. As is clear from the reading of Labor Code section 1197.5, subdivisions (a), (b), (g) and (h), the employee may bring an immediate civil action to recover the difference between wages earned and those paid, since a cause of action accrues when suit may be maintained thereon. (Dillon v. Board of Pension Commrs. (1941) 18 Cal.2d 427, 430, 116 P.2d 37.) It necessarily follows, a new cause of action accrues Each time the employee receives unequal pay. Just as the time limitation on right to sue for any one Pension installment necessarily commences to run from the time when that installment actually falls due, so does a time limitation for the right to sue on each discriminatory Pay check begin to run from the time that paycheck actually comes due. (Ibid.)

Plaintiff cites Adams v. City of Modesto (1960) 53 Cal.2d 833, 841, 3 Cal.Rptr. 561, 350 P.2d 529, as authority for holding a cause of action does not accrue until termination of the employment relationship. However, in Adams, police officers had earned compensatory time off for holidays worked and unused vacation time, and they sought to recover the monetary value of this time off. The Adams court held the cause of action for conversion of compensatory time off into monetary value does not accrue until the employment is terminated, since the compensatory time off could be granted at any time up to such termination. Plaintiff argues compensatory time off could have been given and the voluntary ending of the discriminatory pay classification is the same as termination of employment.

The conversion into monetary value of compensatory time off is not similar to the right to be paid equal wages for equal work. The right to such conversion is contingent on there being compensatory time off remaining at the termination of employment. The right to equal pay depends only on the performance of equal work. The withholding of the rightful wage is a completed, wrongful withholding of money. The right to receipt of equal pay for equal work already performed is in no way contingent, but more akin to a vested right. As such, the employee should not be required to wait until she either quits, or is fired, or retired, in order to recover the balance of wages owing from past years of underpayment. We hold the employee receives a new cause of action each discriminatory payday and that the statute of limitations begins to run from that time. Since the employee has suffered definite harm, and there may be further harm in the future, we are of the opinion a rule similar to that used in cases of continuing trespass or nuisance should be applicable here as well.

Under this rule, the employee would be required to elect either (1) immediate suit for all present and prospective damages on the theory that permanent injury has occurred; or (2) to treat the wrong as Continuing but not necessarily permanent, and sue only for damages suffered up to the time of the action. The second election allows further suits on successive causes of action so long as the wrongful act continues to cause injury, and in any action recovery may be had for all damage suffered within two years of the filing of the complaint. (See 2 Witkin, Cal. Procedure (2d ed. 1970), Actions, s 321, p. 1165, and cases cited therein.) As applied to the present case, plaintiff's recovery should have been limited to damages incurred within two years of commencing this action which was the recovery awarded by the trial court. We find no error here.

Plaintiff next contends she should have been awarded reasonable attorney's fees as provided in Labor Code section 1197.5, subdivision (g). Plaintiff argues such fees are made mandatory by the wording of the above section, and are also required by section 1021.5 of the Code of Civil Procedure. Additionally, plaintiff contends if this court construes Labor Code section 1197.5, subdivision (g), as being discretionary, then the trial court abused its discretion in failing to award such fees.

First, plaintiff argues the word “may” as used in Labor Code section 1197.5, subdivision (g), refers to an option held by the employee, of seeking either civil or administrative relief. (See Lab.Code, s 1197.5, subds. (c), (e) and (f), not at issue here.) Under plaintiff's reading of subdivision (g), the employee “may” either file a complaint with the Division of Labor Standards Enforcement, or recover in a civil action. We agree the employee has the option of civil or administrative relief. However, the word “may”, as used in subdivision (g), does not refer solely to this option, but also the possible recovery in the civil action, if this is the chosen method of relief.

That the award of attorney's fees under section 1197.5, subdivision (g), is intended by the Legislature to be discretionary, is evidenced by the use of the word “may”. (Lab.Code, ss 5, 15.)² Had the Legislature intended mandatory recovery of attorney's fees, it would have worded subdivision (g) in a manner to derogate from the requirements of Labor Code sections 5 and 15 that the word may as used in that code be interpreted as permissive, not mandatory. (See 45 Cal.Jur.2d, Statutes, ss 156-157, pp. 656-660.) An example of such wording is found in subdivision (f), which reads, in pertinent part: “The department or division may commence and prosecute . . . a civil action . . . to recover unpaid wages under subdivision (a), and in addition to such wages Shall be entitled to recover costs of suit.” (Emphasis added.) (Lab.Code, s 1197.5, subd. (f); see fn. 1.)

Where a word or phrase is repeatedly used in a statute it will be presumed in the absence of anything in the statute to the contrary that it was used in the same sense throughout. On the other hand, where different words are used in the same connection in different parts of the statute, it will be presumed that the Legislature intended different meanings. (45 Cal.Jur.2d, Statutes, s 143, p. 650.) We hold the use of the word “may” in Labor Code section 1197.5, subdivision (g), means the award of attorney's fees pursuant to that subdivision is discretionary in the trial court.

Plaintiff's argument that Code of Civil Procedure section 1021.5 applies here is without merit.³ The record before this court discloses no motion for such fees having been made at the trial level. The only apparent reference to attorney's fees by plaintiff's attorney is in regard to those allowed under Labor Code section 1197.5, subdivision (g). We do not decide the availability of attorney's fees under Code of Civil Procedure section 1021.5 as we hold the failure to properly present the issue for the discretion of the trial court waives recovery under that section.

Finally, plaintiff contends any discretion allowed under Labor Code section 1197.5, subdivision (g), was abused by the trial court's failure to award attorney's fees. Plaintiff argues the kind of case before this court benefits the public and successful plaintiffs should recover attorney's fees because of this benefit. In light of our decision regarding the discretionary nature of the award of attorney's fees under this section, plaintiff's arguments are meritless. To hold all successful plaintiffs should recover attorney's fees would relegate the word “may” in this subdivision to mere surplusage. Plaintiff's arguments would make the award mandatory, based on the nature of the action alone. This would remove all discretion from making the award, a result clearly in conflict with the express intent of the Legislature. We are of the opinion the trial court did not abuse its discretion in withholding the award of attorney's fees where the only allegation of abuse is based solely on the nature of the cause of action.⁴ To do so would render the discretionary language in subdivision (g) meaningless, a result we shall avoid. (45 Cal.Jur.2d, Statutes, s 117, pp. 626-627, and cases cited therein.)

The judgment is affirmed.

I respectfully dissent. Labor Code section 1197.5, in my view, permits recovery of the entire balance of wages owed and the reasonable attorney's fees requested. To read the code section as does the majority is to weaken it beyond recognition.¹

The discriminatory acts of the defendant are undisputed. Since Bessie Jones was hired by the Tracy School District in 1964 as a custodian, she worked side by side with the male custodians. In 1968, she was reclassified from a custodian to a custodial matron, admittedly because of her sex. She thereafter received approximately $28 per month less pay than her male counterparts. She began questioning the pay discrepancy through proper administrative channels in January 1974. On April 1, 1974, her position and pay were upgraded to that of male custodians, as the majority explain, but the administrative process did not resolve the issue of back wages. Consequently, the complaint leading to this appeal was filed on July 8, 1975.

1. Lost Wages

Labor Code section 1197.5 permits recovery of earnings wrongfully withheld from 1968 through 1974. The mandate of section 1197.5, subdivision (g) is explicit: “Any employee receiving less than the wage to which the employee is entitled . . . may recover in a civil action the balance of such wages, . . . .” The words are plain she is entitled to the Balance, the difference between that she would have been paid and what she actually was paid but for her employer's discriminatory practice. We must construe the language of the statute in accordance with the ordinary plain meaning of the language used. (See Pac. Gas & E. Co. v. Shasta Dam etc. Dist. (1955) 135 Cal.App.2d 463, 287 P.2d 841; People v. Privitera (1976) 55 Cal.App.3d Supp. 39, 45, 128 Cal.Rptr. 151.) When the words of a statute are clear, the courts should not add to them or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. (Estate of Kramme (1978) 20 Cal.3d 567, 572, 143 Cal.Rptr. 542, 573 P.2d 1369; People v. Knowles (1950) 35 Cal.2d 175, 183, 217 P.2d 1.) On that basis alone, I conclude that plaintiff is entitled to recover the balance owed for the entire period of discriminatory wage practices.

If we examine beyond the plain meaning of the statute, we find solid reasons to support a reading which makes the plaintiff whole. Those reasons are founded in history, public policy, and reason. At the very least, plaintiff should be made partially whole by the tolling of the statute of limitations.

First, let us examine history. We deal with a statute originally enacted in 1949 to protect women against pay discrimination in employment. The Equal Pay Law was strengthened through amendments in 1957, 1965, 1968, and in 1976, to afford both men and women greater legal protection against employers who discriminate. These amendments, essentially, require an employer to maintain certain employment records, extend protection to female employees, provide for interest on unpaid wages, provide for reasonable attorney's fees, and extend the time period in which to commence suit. (Stats.1957, ch. 2384, p. 4130, s 1; Stats.1965, ch. 825, p. 2417, s 1; Stats.1968, ch. 325, p. 705, s 1; Stats.1976, ch. 1184, p. 5288, s 3.) The amendments steadily strengthened protection against sex discrimination in employment.

Second, let us look at public policy. The clear and fundamental public policy which exists in California is to achieve equal employment opportunity for both sexes. Labor Code section 1197.5 must be read in light of its evident objective. (H. S. Mann Corp. v. Moody (1956) 144 Cal.App.2d 310, 301 P.2d 28.) It must be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect. (Morrison v. Unemployment Ins. Appeals Bd. (1976) 65 Cal.App.3d 245, 250, 134 Cal.Rptr. 916.) The Fair Employment Act, for example, prohibits discrimination in compensation or benefit of employment on the basis of sex. (Lab.Code, s 1410, et seq.) Likewise, Article I, s 8 of the California Constitution prohibits sex discrimination in pursuit of employment, business, profession, or vocation.²

Remedial statutes, such as this, must be construed liberally regarding the social problems meant to be ameliorated and on behalf of the class to be helped. (See Viles v. State of California (1967) 66 Cal.2d 24, 32-33, 56 Cal.Rptr. 666, 423 P.2d 818; Buck v. City of Eureka (1893) 97 Cal. 135, 137-138, 31 P. 845.) Statistics compiled by the United Department of Labor confirm that the average income for women is far lower than that of men; in 1956, the median income for women was 63% Of the income of men. By 1973, the wage discrepancy of at least one classification, service workers, was widening; the median salary for women was $4,583, while for men it was $7,937. Thus, women earned only 57% Of the average income of men. These figures underscore the social evil which Labor Code section 1197.5 seeks to correct.

Third, we look to reason. Statutes must be given a reasonable and common sense construction (Rose v. State (1942) 19 Cal.2d 713, 123 P.2d 505), one that will lead to a wise policy rather than an absurdity. (In re Davis (1936) 18 Cal.App.2d 291, 63 P.2d 853.) It is neither wise nor reasonable to penalize a person for pursuing an administrative remedy. Because Bessie chose to petition her employer, through her employer's procedure, she lost a portion of her wages. By the majority reasoning Bessie lost the wage difference from January through July while she pursued her administrative remedy. If, instead of petitioning her employer, the plaintiff had immediately filed suit, she would have recovered more. The effect of today's ruling is to encourage premature legal action to resolve these employer-employee disputes. I cannot agree that the statute must be thusly construed.

Finally, the statute of limitations, if applicable, is equitably tolled. The doctrine of equitable tolling requires “timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff.” (Addison v. State of California (1978) 21 Cal.3d 313, 319, 146 Cal.Rptr. 224, 227, 578 P.2d 941, 944.) The equitable tolling doctrine favors the public policy of this state to allow good faith litigants their day in court. “As with other general equitable principles, application of the equitable tolling doctrine requires a balancing . . . .” (p. 321, 146 Cal.Rptr. p. 228, 578 P.2d p. 945.) We balance the injustice to the plaintiff (occasioned by the bar of claim) against the statute of limitations. Elkins v. Derby (1974) 12 Cal.3d 410, 115 Cal.Rptr. 641, 525 P.2d 81, aids us in that balance. It tells us “that regardless of whether the exhaustion of one remedy is a prerequisite to the pursuit of another, if the defendant is not prejudiced thereby, the running of the limitations period is tolled ‘(w)hen an injured person has several legal remedies and, reasonably and in good faith, pursues one.’ ” (p. 414, 115 Cal.Rptr. p. 644, 525 P.2d p. 84.) This is especially true where a party pursues an administrative remedy. Because employer had notice of a claim against it, the public policy considerations favoring a limitation on the action are inapplicable. Defendant was apprised of the claims against them; it could gather and preserve evidence. It follows that the statute was tolled for Bessie at least from the time she began pursuing her administrative remedy.

I repeat, however, that the statute of limitations has no applicability in the factual setting of the case at bench. The suit was filed in a timely fashion. The only question is how far back in time the complainant may recover wages.

2. Attorney Fees

The plain meaning of the statute entitled plaintiff to recovery of her attorney's fees. Subdivision (g) of Labor Code section 1197.5 provides: “Any employee receiving less than a wage to which the employee is entitled under this section may recover In a civil action the balance of such wages, including interest thereon, together with the costs of the suit and reasonable attorney's fees . . . .” (Emphasis added.) The “may” in this context suggests two options: (1) that she may or (2) may not recover. A recovery, of course, depends on the merits of her case. Thus, the use of the word “may” does not reasonably suggest that attorney's fees are permissive if the plaintiff is successful; neither are the costs of the suit permissive.

Moreover, the word “may” when used in statutes, need not be construed as permissive. It is mandatory where the object to be attained compels such a construction or where the construction is necessary. (Driscoll v. East-West Dairymen's Assn. (1942) 52 Cal.App.2d 468, 472, 126 P.2d 467; California Trust Co. v. Bennett (1949) 33 Cal.2d 694, 697, 204 P.2d 324.) As we have seen, sex discrimination in the payment of wages is the evil our Legislature has sought to eliminate. To effectuate those goals private lawsuits are authorized. I would hold that the necessary construction of section 1197.5, subdivision (g) requires that an award of attorney's fees be granted whenever an employee successfully maintains an action.

The majority's decision has a predictable negative impact on litigation to enforce equal pay. Persons who are victimized by employers may not have the financial resources to maintain a costly lawsuit. Perhaps more important is that the cost of litigation makes the pursuit of a legal remedy for back wages cost-ineffective; it may cost more to bring the action than the recovery justified. The award of attorney's fees is essential to effectuate the objectives of the statute.³

I would reverse and remand.

FOOTNOTES

1.  Labor Code section 1197.5 has been reworded, in part, by amendment subsequent to the filing of the initial complaint in this action. The amendments have no effect on the outcome of this appeal and the section is quoted in its present form. The section reads, in pertinent part, as follows: “(a) No employer shall pay any individual in the employer's employ at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any bona fide factor other than sex. (P) (b) Any employer who violates subdivision (a) is liable to the employee affected in the amount of the wages, and interest thereon, of which such employee is deprived by reason of such violation.“ . . . aso“(f) The department or division may commence and prosecute, unless otherwise requested by the employee or affected group of employees, a civil action on behalf of the employee and on behalf of a similarly affected group of employees to recover unpaid wages under subdivision (a), and in addition to such wages Shall be entitled to recover costs of suit. The consent of any employee to the bringing of any such action shall constitute a waiver on the part of the employee of the employee's cause of action under subdivision (g) unless such action is dismissed without prejudice by the department or the division, except that such employee may intervene in such suit or may initiate independent action if such suit has not been determined within 180 days from the date of the filing of the complaint. (P) (g) Any employee receiving less than the wage to which the employee is entitled under this section May recover in a civil action the balance of such wages, including interest thereon, together with the costs of the suit and reasonable attorney's fees, notwithstanding any agreement to work for a lesser wage. (P) (h) A civil action to recover wages under subdivision (a) may be commenced no later than two years after the cause of action occurs.” (Emphasis added.)

2.  Labor Code section 5 provides that: “Unless the context otherwise requires, the general provisions hereinafter set forth shall govern the construction of this code.” Labor Code section 15 provides as follows: “ ‘Shall’ is mandatory and ‘may’ is permissive.”

3.  Code of Civil Procedure section 1021.5 states: “Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor.”

4.  It is worthy of note the record reflects defendant offered to settle the matter of back wages on two occasions for amounts considerably in excess of the eventual final judgment, but each offer was rejected by plaintiff.

1.  Only if the back wages proved confiscatory, not true in the case at bench, should we concern ourselves that the statute might be unfair to the defendant.

2.  Federal law proscribes sex discrimination in employment. (42 U.S.C. s 2000e, et seq.) The United States Supreme Court outlined the underlying reason for the federal Equal Pay Act in Corning Glass Works v. Brennan (1974) 417 U.S. 188, 195, (94 S.Ct. 2223, 2228, 41 L.Ed.2d 1, 10) where it was held:“Congress' purpose in enacting the Equal Pay Act was to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry the fact that the wage structure of ‘many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.’ S.Rep. No. 176, 88th Cong. 1st Sess. 1 (1963).”The legislative history and judicial interpretation of both state and federal law highlight the importance of California's equal pay statute, placing the issue we face in its proper perspective.

3.  Assuming that the granting of attorney's fees is permissive, the trial court abused its discretion by denying fees in this case. The trial court's discretion must be based on sound judgment, inspired by a desire to promote justice, and must not be arbitrary or capricious. (Kelly v. Central R.R. Co. (1888) 74 Cal. 557, 16 P. 386; 15 Cal.Jur.3d, Costs, s 16, pp. 623-624.) Defendant was the evil doer; basic justice demands that plaintiff recover her attorney's fees.

REGAN, Associate Justice.

PUGLIA, P. J., concurs.