Personal Injury Law

Workplace Suit Filed By Sacramento Firefighter, Part 14 of 19

By Moseley Collins, Esq.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

In Birschtein v. New United Motor Manufacturing, Inc. (2002) 92 Cal.App. 4th 994, 1004, the California Court of Appeals noted that the foundation of the [California Supreme Court's] rationale supporting application of the continuing violation doctrine in FEHA discrimination litigation is not so much accommodation itself as a process of conciliation. It is clear from these authorities that the statute of limitations on plaintiff's claims did not begin running as soon as the City applied for involuntary retirement. The limitations period only began running when that decision had a permanence or finality attached to it, which was on the date of the formal discharge, or January 20, 2005. In other words, the conciliation efforts that intervened, including plaintiff filing a grievance over the retirement application, the requests for accommodation, the submission of new medical releases, the requests for a neutral and independent second medical opinion, and the repeated efforts to prompt a good faith interactive dialogue, delayed the running of the one-year statute of limitations period until well after June 10, 2004.

B. Plaintiff's Disability Discrimination / Failure to Accommodate Claim
Plaintiffs failure to accommodate and failure to engage in the interactive process claim are also subject to the continuing violation doctrine. Indeed, in Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, the California Supreme Court specifically applied the continuing violation doctrine to a FEHA claim involving an alleged failure to accommodate a disability. The Court reasoned that the FEHA statute of limitations should not be interpreted to force upon a disabled employee engaged in the process of seeking reasonable accommodation the unappealing choice of resigning at the first sign of disability discrimination or, on the other hand, persisting in the reconciliation process and possibly forfeiting a valid claim should that process prove unsuccessful. See Yanowitz, supra, citing Richards, at 821.

Full post as published by Sacramento Injury Lawyer Blog on September 18, 2009 (boomark / email).