California Civil Jury Instructions (CACI) (2017)

2508. Failure to File Timely Administrative Complaint (Gov. Code, § 12960(d))—Plaintiff Alleges Continuing Violation

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2508.Failure to File Timely Administrative Complaint (Gov. Code,
§ 12960(d))—Plaintiff Alleges Continuing Violation
[Name of defendant] contends that [name of plaintiff]’s lawsuit may not
proceed because [name of plaintiff] did not timely file a complaint with
the Department of Fair Employment and Housing (DFEH). A complaint
is timely if it was filed within one year of the date on which [name of
defendant]’s alleged unlawful practice occurred.
[Name of plaintiff] filed a complaint with the DFEH on [date]. [Name of
defendant] claims that its alleged unlawful practice that triggered the
requirement to file a complaint occurred no later than [date more than
one year before DFEH complaint was filed]. [Name of plaintiff] claims that
[name of defendant]’s unlawful practice was a continuing violation so
that the requirement to file a complaint was triggered no earlier than
[date less than one year before DFEH complaint was filed].
[Name of defendant]’s alleged unlawful practice is considered as
continuing to occur as long as [name of plaintiff] proves that all of the
following three conditions continue to exist:
1. Conduct occurring within a year of the date on which [name of
plaintiff] filed [his/her] complaint with the DFEH was similar or
related to the conduct that occurred earlier;
2. The conduct was reasonably frequent; and
3. The conduct had not yet become permanent.
“Permanent” in this context means that the conduct has stopped, [name
of plaintiff] has resigned, or [name of defendant]’s statements and actions
would make it clear to a reasonable employee that any further efforts to
resolve the issue internally would be futile.
New June 2010; Revised December 2011, June 2015
Directions for Use
Give this instruction if the plaintiff relies on the continuing-violation doctrine in
order to avoid the bar of the limitation period of one year within which to file an
administrative complaint. (See Gov. Code, § 12960(d).) Although the continuing-
violation doctrine is labeled an equitable exception to the one-year deadline, it may
involve triable issues of fact. (See Dominguez v. Washington Mutual Bank (2008)
168 Cal.App.4th 714, 723–724 [85 Cal.Rptr.3d 705].)
If the case involves multiple claims of FEHA violations, replace “lawsuit” in the
opening sentence with reference to the particular claim or claims to which the
continuing-violation rule may apply.
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In the second paragraph, insert the date on which the administrative complaint was
filed and the dates on which both sides allege that the complaint requirement was
triggered. The verdict form should ask the jury to specify the date that it finds that
the requirement accrued. If there are multiple claims with different continuing-
violation dates, repeat this paragraph for each claim.
The plaintiff has the burden to plead and prove timely exhaustion of administrative
remedies, such as filing a sufficient complaint with the DFEH. (Kim v. Konad USA
Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345 [172 Cal.Rptr.3d 686].) This
burden of proof extends to any excuse or justification for the failure to timely file,
such as the continuing violation exception. (Jumaane v. City of Los Angeles (2015)
241 Cal.App.4th 1390, 1402 [194 Cal.Rptr.3d 689].)
Sources and Authority
• Administrative Complaint for FEHA Violation. Government Code section
12960.
“At a jury trial, the facts are presented and the jury must decide whether there
was a continuing course of unlawful conduct based on the law as stated in
CACI No. 2508.” (Jumaane, supra, 241 Cal.App.4th at p. 1401.)
• “Under the FEHA, the employee must exhaust the administrative remedy
provided by the statute by filing a complaint with the Department of Fair
Employment and Housing (Department) and must obtain from the Department a
notice of right to sue in order to be entitled to file a civil action in court based
on violations of the FEHA. The timely filing of an administrative complaint is a
prerequisite to the bringing of a civil action for damages under the FEHA. As
for the applicable limitation period, the FEHA provides that no complaint for
any violation of its provisions may be filed with the Department ‘after the
expiration of one year from the date upon which the alleged unlawful practice
or refusal to cooperate occurred,’ with an exception for delayed discovery not
relevant here.” (Morgan v. Regents of University of California (2000) 88
Cal.App.4th 52, 63 [105 Cal.Rptr.2d 652], original italics, internal citations
omitted.)
• “[I]t is ‘plaintiff’s burden to plead and prove timely exhaustion of administrative
remedies, such as filing a sufficient complaint with [DFEH] and obtaining a
right-to-sue letter.’ ” (Kim, supra, 226 Cal.App.4th at p. 1345.)
• “[W]hen defendant has asserted the statute of limitation defense, plaintiff has
the burden of proof to show his or her claims are timely under the continuing
violation doctrine.” (Jumaane, supra, 241 Cal.App.4th at p. 1402.)
• “[Plaintiff] argued below, as she does on appeal, that her DFEH complaint was
timely under an equitable exception to the one-year deadline known as the
continuing violation doctrine. Under this doctrine, a FEHA complaint is timely
if discriminatory practices occurring outside the limitations period continued
into that period. A continuing violation exists if (1) the conduct occurring
within the limitations period is similar in kind to the conduct that falls outside
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the period; (2) the conduct was reasonably frequent; and (3) it had not yet
acquired a degree of permanence.” (Dominguez, supra, 168 Cal.App.4th at pp.
720–721, internal citations omitted.)
• “ ‘[P]ermanence’ in the context of an ongoing process of accommodation of
disability, or ongoing disability harassment, should properly be understood to
mean the following: that an employer’s statements and actions make clear to a
reasonable employee that any further efforts at informal conciliation to obtain
reasonable accommodation or end harassment will be futile. [¶] Thus, when an
employer engages in a continuing course of unlawful conduct under the FEHA
by refusing reasonable accommodation of a disabled employee or engaging in
disability harassment, and this course of conduct does not constitute a
constructive discharge, the statute of limitations begins to run, not necessarily
when the employee first believes that his or her rights may have been violated,
but rather, either when the course of conduct is brought to an end, as by the
employer’s cessation of such conduct or by the employee’s resignation, or when
the employee is on notice that further efforts to end the unlawful conduct will
be in vain. Accordingly, an employer who is confronted with an employee
seeking accommodation of disability or relief from disability harassment may
assert control over its legal relationship with the employee either by
accommodating the employee’s requests, or by making clear to the employee in
a definitive manner that it will not be granting any such requests, thereby
commencing the running of the statute of limitations.” (Richards v. CH2M Hill,
Inc. (2001) 26 Cal.4th 798, 823–824 [111 Cal.Rptr.2d 87, 29 P.3d 175], internal
citations omitted.)
• “[T]he Richards court interpreted section 12960 to mean that when a continuing
pattern of wrongful conduct occurs partly in the statutory period and partly
outside the statutory period, the limitations period begins to accrue once an
employee is on notice of the violation of his or her rights and on notice that
‘litigation, not informal conciliation, is the only alternative for the vindication
of his or her rights.’ ” (Acuna v. San Diego Gas & Electric Co. (2013) 217
Cal.App.4th 1402, 1412 [159 Cal.Rptr.3d 749].)
• “A continuing violation may be established by demonstrating ‘a company wide
policy or practice’ or ‘a series of related acts against a single individual.’ ‘The
continuing violation theory generally has been applied in the context of a
continuing policy and practice of discrimination on a company-wide basis; a
plaintiff who shows that a policy and practice operated at least in part within
the limitation period satisfies the filing requirements. “[A] systematic policy of
discrimination is actionable even if some or all of the events evidencing its
inception occurred prior to the limitations period. The reason is that the
continuing system of discrimination operates against the employee and violates
his or her rights up to a point in time that falls within the applicable limitations
period. Such continuing violations are most likely to occur in the matter of
placements or promotions.” ’ The plaintiff must demonstrate that at least one act
occurred within the filing period and that ‘the harassment is “more than the
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occurrence of isolated or sporadic acts of intentional discrimination.” . . . The
relevant distinction is between the occurrence of isolated, intermittent acts of
discrimination and a persistent, on-going pattern.’ ” (Morgan, supra, 88
Cal.App.4th at p. 64, internal citations omitted.)
• “[A] continuing violation claim will likely fail if the plaintiff knew, or through
the exercise of reasonable diligence would have known, [he] was being
discriminated against at the time the earlier events occurred.” (Morgan, supra,
88 Cal.App.4th at p. 65.)
• “The Supreme Court has extended the continuing violation doctrine to
retaliation claims. And the doctrine also applies to racial harassment claims.
Indeed, as we observed in Morgan v. Regents of University of California, supra,
88 Cal.App.4th 52, 65: ‘Cases alleging a hostile work environment due to racial
or sexual harassment are often found to come within the continuing violations
framework.’ ” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 270
[100 Cal.Rptr.3d 296], internal citations omitted.)
Secondary Sources
7 Witkin, Summary of California Law (10th ed. 2005) Constitutional Law, § 948
3Witkin, California Procedure (5th ed. 2008) Actions, § 564
Chin et al., California Practice Guide: Employment Litigation, Ch. 7-A, Title VII
And The California Fair Employment And Housing Act, ¶¶ 7:561.1, 7:975 (The
Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 16-A, Failure
To Exhaust Administrative Remedies, ¶ 16:85 (The Rutter Group)
3 Wilcox, California Employment Law, Ch. 43, Civil Actions Under Equal
Employment Opportunity Laws, § 43.01[4] (Matthew Bender)
11 California Forms of Pleading and Practice, Ch. 115, Civil Rights: Employment
Discrimination, § 115.51[1] (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: Wrongful
Termination and Discipline, § 100.59 (Matthew Bender)
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