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

California Civil Jury Instructions CACI

2508 Failure to File Timely Administrative Complaint (Gov. Code, § 12960(e))—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 three years 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 plaintiff] may recover for acts of alleged [specify the unlawful practice, e.g., harassment] that occurred before [insert date three years before the DFEH complaint was filed], only if [he/she/nonbinary pronoun] proves all of the following:

1.That [name of defendant]’s [e.g., harassment] that occurred before [insert date three years before the DFEH complaint was filed] was similar or related to the conduct that occurred on or after that date;

2.That the conduct was reasonably frequent; and

3.That the conduct had not yet become permanent before that date.

“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, May 2019, May 2020

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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 three years within which to file an administrative complaint. (See Gov. Code, § 12960(e).) Although the continuing-violation doctrine is labeled an equitable exception, 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.

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, the 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.)

“Under the continuing violation doctrine, a plaintiff may recover for unlawful acts occurring outside the limitations period if they continued into that period. The continuing violation doctrine requires proof that (1) the defendant’s actions inside and outside the limitations period are sufficiently similar in kind; (2) those actions occurred with sufficient frequency; and (3) those actions have not acquired a degree of permanence.” (Wassmann v. South Orange County Community College Dist. (2018) 24 Cal.App.5th 825, 850–851 [234 Cal.Rptr.3d 712], 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 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, [the plaintiff] 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

8 Witkin, Summary of California Law (11th ed. 2017) Constitutional Law, § 1065
4 Witkin, 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)