AMBROSE v. NATOMAS COMPANY (1984)

Plaintiff Warren Ambrose filed an action for damages against his former employer, Natomas Company, alleging that he was terminated from his employment because of age, in violation of former Labor Code section 1420.1.   Defendant's motion for summary judgment was granted, and plaintiff's action was dismissed.   The principal question in this appeal is whether plaintiff's cause of action for alleged age discrimination accrued when he was notified of his discharge or when his employment actually terminated.

The essential facts are not in dispute.   Sometime in the second half of 1978, when plaintiff was over 40 years old, he was informed that defendant Natomas intended to discharge him.   It was agreed that his discharge would be effective on December 31, 1978.   On December 20, 1979, he wrote to what was then the state's Division of Fair Employment Practices, complaining that he had been terminated because of age, and stating that he was not on the job after December 31, 1978.   His letter made no reference to the date he was notified of his discharge.   In January 1980, the division informed him inter alia:  (1) if his termination date was December 31, 1978, the statute of limitations on his claim was December 31, 1979;  (2) his letter did not provide sufficient information to enable the filing of a timely formal complaint on his behalf;  (3) he should re-contact their office if he had verification that he was an employee beyond December 31, 1978.   Plaintiff submitted some additional information to the division, but eventually filed a complaint in superior court for damages.

Defendant Natomas moved for summary judgment, on the ground that plaintiff had failed to exhaust his administrative remedies.   Defendant urged that (1) plaintiff failed to file his complaint with the state agency within one year of his notification of the decision to terminate him;  and (2) even if plaintiff's cause of action did not accrue until the last date of his employment, his letter to the agency was insufficient as a complaint and his action was barred.   The court concluded that there was no triable issue of material fact and that defendant was entitled to judgment as a matter of law.

An employee's state remedy for age discrimination in employment is delineated by the provisions of the California Fair Employment and Housing Act (hereafter FEHA).  (Gov.Code, § 12900 et seq.;  Strauss v. A.L. Randall Co. (1983) 144 Cal.App.3d 514, 517–521, 194 Cal.Rptr. 520.)   The FEHA is a recodification of the state's Fair Employment Practice Act.  (Former Lab. Code, § 1410 et seq.;   see Stats.1959, ch. 121, § 1, p. 1999 et seq.;   Stats.1980, ch. 992, § 4, p. 3140 et seq.) ¹

 Under the FEHA the Department of Fair Employment and Housing (hereafter Department;  formerly the Division of Fair Employment Practices) investigates, conciliates, and seeks redress of claimed discrimination.   Aggrieved persons may file complaints with the Department, which must promptly investigate.   If it deems a claim valid, it seeks to resolve the matter, in confidence, by conference, conciliation and persuasion.   If that fails or seems inappropriate, the Department may issue an accusation to be heard by the Fair Employment and Housing Commission (hereafter Commission).   A person may bring a civil action under the FEHA only if no accusation is issued within a specified time and the matter is not otherwise resolved, and if the Department issues a right-to-sue letter.  (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 213–214, 185 Cal.Rptr. 270, 649 P.2d 912.)   Prior to resorting to the judicial process with a claim of unlawful age discrimination, a litigant must ordinarily show that he has invoked and exhausted the administrative remedy provided by the FEHA.  (Bennett v. Borden, Inc. (1976) 56 Cal.App.3d 706, 709, 128 Cal.Rptr. 627;  Gov.Code, § 12965, subd. (b).)

Government Code section 12960 establishes the period of limitations for the filing of a complaint with the Department:  “․ one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred ․”  Plaintiff concedes that his letter to the Department was not filed within one year of the date upon which he was notified of his termination;  instead, he argues that the limitation period should not have commenced running until the actual date of termination.   Plaintiff reasons that he should not have been required to file a complaint with the Department while he was still working for defendant, trying to negotiate possible re-employment and favorable severance pay.

Apparently the question is one of first impression in this state.   However, analogous federal statutes also prohibit employment discrimination generally and age discrimination in particular.  (Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e–2000e–17;  Age Discrimination in Employment Act of 1967, 29 U.S.C.A. §§ 621–634.)   Both acts require the filing of a complaint within a specified time after the occurrence of the alleged unlawful practice.  (42 U.S.C.A. § 2000e–5(e);  29 U.S.C.A. § 626(d)(1), (2).)   As those statutes have been construed, when the only unlawful practice alleged is wrongful discharge, the limitations period begins to run when the employee is notified of the decision to terminate, and not on the date when termination actually occurs.  (Chardon v. Fernandez (1981) 454 U.S. 6, 102 S.Ct. 28, 28–29, 70 L.Ed.2d 6;  see also Delaware State College v. Ricks (1980) 449 U.S. 250, 256–259, 101 S.Ct. 498, 503–504, 66 L.Ed.2d 431;  Aronsen v. Crown Zellerbach (9th Cir.1981) 662 F.2d 584, 591–594.)

In Delaware State College v. Ricks, supra, 449 U.S. 250, 101 S.Ct. 498, the Supreme Court rejected an argument similar to that made by plaintiff in this case that an employee should not be expected to resort to litigation until termination has actually occurred.   The proper focus, the court explained, must be on the time of the discriminatory act, not the point at which the consequences of the act become painful.  (Id., at pp. 256–259, 101 S.Ct. at 503–504.)   When the operative decision is made, and notice given in advance of a designated date upon which employment is to terminate, the fact that the employee is afforded reasonable notice cannot extend the period within which a complaint must be filed.  (Chardon v. Fernandez, supra, 454 U.S. at pp. 6–8, 102 S.Ct. at pp. 28–29.)

Plaintiff urges that we not follow federal precedent, and we recognize that the United States Supreme Court's interpretation of federal antidiscrimination statutes does not necessarily determine the appropriate interpretation of this state's FEHA.  (Price v. Civil Service Com. (1980) 26 Cal.3d 257, 276, 161 Cal.Rptr. 475, 604 P.2d 1365;  Cal.Admin.Code, tit. 2, § 7285.1, subd. (b).)  Differences between the federal statutes and the FEHA may diminish the weight of federal precedents.   For example, punitive damages are available in a civil action under the FEHA, but not in a federal civil action under title VII of the Civil Rights Act of 1964 (Commodore Home Systems, Inc. v. Superior Court, supra, 32 Cal.3d at pp. 216–220, 185 Cal.Rptr. 270, 649 P.2d 912;  see also Motors Ins. Corp. v. Division of Fair Employment Practices (1981) 118 Cal.App.3d 209, 218–221, 173 Cal.Rptr. 332 [unlike federal law, efforts to resolve alleged discriminatory practices by conciliation not jurisdictional prerequisite to issuance of complaint against employer by the Department].)

 Here, however, plaintiff points to no differences between the federal and state statutes which would justify departing from federal precedent.   Furthermore, interpreting Government Code section 12960 as plaintiff suggests would undermine rather than effectuate the purposes of the FEHA.   The purpose of the requirement that a complaint be filed with the Department is to enable that agency to eliminate the unlawful practice, or to seek redress for the aggrieved employee through confidential conference, conciliation, and persuasion.  (Strauss v. A.L. Randall, supra, 144 Cal.App.3d at pp. 518–519, 194 Cal.Rptr. 520;  Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 871, fn. 7, 193 Cal.Rptr. 760.)   Presumably, persuading an employer not to terminate the complainant is among the agency's goals, and early notice to an employer of a claimed violation is consistent with achieving that goal.   Persuasion and conciliation would be less likely to succeed in eliminating the unlawful discrimination if agency intervention does not even commence until sometime after the aggrieved employee has actually ceased work.   The trial court correctly concluded that plaintiff's complaint to the Department, which was not filed within one year of the time the termination decision was made and communicated to him, was untimely.

 Plaintiff also contends that (1) his discharge gives rise to a tort cause of action as well as a statutory cause of action under the FEHA;  (2) his tort cause of action would not accrue until he was actually terminated and (3) it would be incongruous to have two causes of action arising from the same wrong, but with different times of accrual.   However, plaintiff's first premise is incorrect.   There is no common law cause of action for age discrimination in this state;  plaintiff's exclusive state remedy for wrongful discharge because of age is under the FEHA.  (Strauss v. A.L. Randall Co., supra, 144 Cal.App.3d at pp. 519–521, 194 Cal.Rptr. 520.)

Next, plaintiff contends that notwithstanding the date on which he was notified of the termination decision, the evidence on the motion for summary judgment raised a triable issue of fact as to whether defendant should be equitably estopped from asserting that plaintiff's complaint to the Department was untimely.   According to plaintiff, excerpts from his deposition and documentary evidence established that he and defendant were continuing to negotiate on the possibility of his re-employment and on the amount of his severance pay in January 1979.   He urges that timely filing of a complaint with the FEHA would have chilled those negotiations.  (See Aronsen v. Crown Zellerbach, supra, 662 F.2d at p. 595.)

 According to California law, an estoppel to set up the defense of a statute of limitations may arise as a result of some conduct by the defendant, reasonably relied on by the plaintiff, which induces the belated filing of the action.  (2 Witkin, Cal. Procedure (2d ed. 1970) Actions, § 394 et seq., p. 1226 et seq.)   Federal law is similar.  (See, e.g., Naton v. Bank of California (9th Cir.1981) 649 F.2d 691, 696.)

 The record does not support plaintiff's assertion that the parties were continuing to negotiate on his possible continued employment into January 1979.   Plaintiff's deposition testimony indicates that he knew his re-employment proposal had been rejected in December 1978.   The record does demonstrate that he was still communicating with defendant with respect to severance pay in January 1979.   However, plaintiff points to no evidence suggesting that those negotiations were still ongoing when the limitations period expired several months later, or that he was induced by those negotiations to delay the filing of his complaint.   While the existence of an estoppel is ordinarily a question of fact (State of California v. Haslett Co. (1975) 45 Cal.App.3d 252, 256, 119 Cal.Rptr. 78), in this case plaintiff failed to raise a genuine issue of material fact in support of his equitable estoppel theory.

 Finally, plaintiff contends that the running of the limitations period should have been equitably tolled until his termination date, because of his own excusable ignorance as to the correct limitations period.   The contention is without merit.   In this state, when a plaintiff reasonably and in good faith pursues one of several available legal remedies, courts may apply the doctrine of equitable tolling to suspend the running of the limitations period on his or her other remedies.  (Addison v. State of California (1978) 21 Cal.3d 313, 317–319, 146 Cal.Rptr. 224, 578 P.2d 941.)   Clearly that doctrine is inapplicable to the facts of this case.

Ignoring Addison and other California cases which explain and apply the state's doctrine of equitable tolling, plaintiff instead relies on dictum in Naton v. Bank of California, supra, 649 F.2d at page 696, stating that the limitations period in actions under the Age Discrimination in Employment Act of 1967 (29 U.S.C. §§ 621–634) may be subject to equitable tolling, a doctrine “․ which often focuses on the plaintiff's excusable ignorance of the limitations period and on lack of prejudice to the defendant [citations] ․”  However, we need not explore either the differences between federal and state doctrines of equitable tolling or the applicability of the federal doctrine to state actions under the FEHA, as it is apparent that plaintiff has raised no triable issue of fact in support of his excusable ignorance theory.   He does not claim that he made any inquiry of anyone as to the relevant filing requirements;  rather, his claim of excusable ignorance rests on his speculation that if he had made any inquiry at the Department, consulted an attorney, or done any independent research, he would have been misinformed or misled about when the one-year limitations period commenced.   However, plaintiff's speculation about what might have happened had he acted is no excuse for his lack of action;  and he cites no authority, federal or state, which so holds.

Judgment is affirmed.

FOOTNOTES

1.   We will refer to the relevant sections of the Government Code rather than to the former Labor Code sections.

SCOTT, Associate Justice.

WHITE, P.J., and BARRY–DEAL, J., concur.