Opinion
A117018
6-26-2008
JOSEPH W. ENGLER, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.
Not to be Published
Plaintiff Joseph W. Engler appeals from a judgment in favor of defendants in his action alleging race discrimination in promotions to the rank of Lieutenant in the San Francisco Police Department. He contends the trial court erred in granting defendant City and County of San Franciscos motions for judgment on the pleadings and summary judgment. In particular, he maintains the court erred in concluding that certain claims are barred by the statute of limitations. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because the critical issues in this matter were resolved by way of a motion for judgment on the pleadings, the following summary of the facts is derived from the allegations set forth in plaintiff Englers complaint. (See Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 166.)
The remaining issues were resolved by defendants motion for summary judgment, which is also challenged on appeal. However, as explained below (infra, Part II), Englers challenge to the grant of the summary judgment motion also fails.
Plaintiff Joseph Engler is a Sergeant with the San Francisco Police Department (SFPD). Engler was passed over for promotion to the rank of Lieutenant by former Chief of Police Alex Fagan in January and August 2003, and by current Chief of Police Heather Fong in June 2004. The gravamen of Englers action is that the SFPD discriminated against him, as a Caucasian, and in favor of African-American Sergeants in promotions to the rank of Lieutenant.
In July 1999, the SFPD gave notice of an examination to be held for promotion from the rank of Sergeant to Lieutenant. The notice stated the eligibility list would have a duration of 36 months. The written examination was administered in October 1999. A subsequent SFPD study found promotion of candidates based on the examination results would have an adverse impact on minority candidates.
From June 2000 to October 2002, the first 25 appointments to Lieutenant were made in rank order according to the examination results. The SFPD announced that subsequent appointments would be made from a "band" of candidates ranked 26 to 96 on the examination results list. Within this band the rank order would be disregarded and secondary selection criteria would govern promotional decisions. Based on the exam, Engler was ranked number 78 out of 203 candidates, so he was part of the band of candidates eligible for promotion after the first 25 appointments.
The SFPD informed the eligible band of candidates of the secondary criteria that would be used to assess their qualifications for promotion; each candidate could receive a maximum of nine selection criteria points. Engler was the only candidate within the band to receive the maximum nine selection criteria points.
In January 2003, then Chief of Police Fagan promoted four candidates from the eligible band, one of whom was African-American. In August 2003, Chief Fagan promoted ten more candidates from the eligible band, including the remaining four African-Americans in the band. This was in accordance with a secret agreement to promote all the African-American candidates in the eligible band. Engler was not promoted in January 2003 or August 2003.
At the end of August 2003, Engler met with Chief Fagan regarding the fact that he had not been promoted. Chief Fagan acknowledged that Engler was the only candidate in the band who received nine selection criteria points and assured Engler that he would be promoted in the next round.
A final round of promotions took place in June 2004, when Chief Fong made fourteen promotions from the eligible band. Engler was not promoted.
On or about February 28, 2005, Engler filed with the California Department of Fair Employment & Housing (Department) a charge alleging the SFPD had discriminated against him because of his race in promotions to the rank of Lieutenant. In December 2005, Engler filed a First Amended Complaint against the City and County of San Francisco (CCSF or defendant) and others. Following the sustaining of a demurrer, the only remaining named defendant was CCSF and the only remaining cause of action was for race discrimination in violation of the Fair Employment and Housing Act (FEHA).
In March 2006, defendant filed a motion for judgment on the pleadings, contending Englers race discrimination claim was time barred to the extent it was based on Chief Fagans January and August 2003 promotions. The trial court granted the motion.
In September 2006, defendant moved for summary judgment, arguing that Engler could not make a prima facie showing of race discrimination in Chief Fongs June 2004 promotions and that Engler could not show Chief Fongs non-discriminatory reasons for her promotion decisions were a pretext for discrimination. The trial court granted the motion and entered judgment in favor of all defendants.
DISCUSSION
I. Motion for Judgment on the Pleadings
Engler first contends the trial court erred in granting defendants motion for judgment on the pleadings.
"In an appeal from a motion granting judgment on the pleadings, we accept as true the facts alleged in the complaint and review the legal issues de novo. `A motion for judgment on the pleadings, like a general demurrer, tests the allegations of the complaint or cross-complaint, supplemented by any matter of which the trial court takes judicial notice, to determine whether plaintiff or cross-complainant has stated a cause of action. [Citation.] Because the trial courts determination is made as a matter of law, we review the ruling de novo, assuming the truth of all material facts properly pled." (Angelucci v. Century Supper Club, supra, 41 Cal.4th 160, 166.)
The applicable limitations period is well established. "Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the [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. [Citations.] The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA." (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.) The FEHA provides that no complaint 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." (Gov. Code, § 12960, subd. (d); see also Romano, at p. 492.)
Section 12960, subdivision (d) of the Government Code contains an exception from the one year limit in the event of delayed discovery, but Engler does not argue that the exception applies.
Englers complaint was filed with the Department in February 2005. The trial court concluded Englers FEHA claim could not be based on any alleged discrimination in Chief Fagans failure to promote Engler in January and August 2003. Engler maintains the court erred because all the promotions through June 2004 were part of a continuing systematic policy of discrimination.
The continuing violation doctrine "is an `equitable exception to the timely filing requirement." (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 63-64 (Morgan ).) The doctrine "comes into play when an employee raises a claim based on conduct that occurred in part outside the limitations period." (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812 (Richards).) The doctrine has two primary aspects. A continuing violation may be established by demonstrating "a systematic corporate policy of discrimination" or "a series of discriminatory acts directed at an individual." (Alch v. Superior Court (2004) 122 Cal.App.4th 339, 368; see also Morgan, at p. 64.) In Richards, the California Supreme Court considered the similar acts aspect of the doctrine in the context of a disability discrimination claim. After reviewing various approaches to the issue, the court held "that an employers persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment targeting a disabled employee, is a continuing violation if the employers unlawful actions are (1) sufficiently similar in kind-recognizing, as this case illustrates, that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence." (Richards, at p. 823.)
Richards actually refers to four "approaches" to the continuing violation doctrine. (Richards, supra, 26 Cal.4th at p. 813.) The first approach involves discrimination resulting from a "policy of systematic discrimination." (Ibid.) The last three approaches involve a series of similar discriminatory acts against an individual, but differ on when the statute of limitations is triggered. (Id. at pp. 813-817; see also Alch v. Superior Court, supra, 122 Cal.App.4th at pp. 369-371.)
Engler does not argue he suffered a continuing violation under the similar acts aspect of the doctrine, as defined by Richards, supra, 26 Cal.4th 798. Instead, he maintains that "[b]ecause every promotion made by city and county from the eligible list . . . was made as part of a brokered deal to secure preferential promotional opportunities for African-Americans, the entire promotional list is part of one systematic `unlawful practice of a continuing nature." Richards explained the discriminatory policy aspect of the doctrine as follows: "[A] continuing violation is found when a corporate policy is initiated before the limitations period but continues in effect within that period to the detriment of the employee. As the Ninth Circuit Court of Appeals stated in Williams v. Owens-Illinois, Inc. (9th Cir. 1982) 665 F.2d 918, 924: `[A] systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period. [Citation.] 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. For example, a discriminatory promotions policy implemented long before a lawsuit is brought is actionable if it continues into the limitations period to wrongfully deny an employee a promotion. [Citations.] Two cases from our own Courts of Appeal also have concluded that a policy of systematic discrimination in the area of promotions constitutes a continuing violation. (Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1052-1054; City and County of San Francisco v. Fair Employment & Housing Com. (1987) 191 Cal.App.3d 976, 983.)" (Richards, at p. 813; see also Morgan, supra, 88 Cal.App.4th at p. 64.)
The problem with Englers argument is that he does not allege facts showing the discriminatory policy "`operated at least in part within the limitation period." (Morgan, supra, 88 Cal.App.4th at p. 64.) The alleged discriminatory policy was the Departments decision to promote all the African-Americans in the eligible band regardless of their relative qualifications. Engler maintains the discriminatory policy continued until expiration of the promotion eligibility list in June 2004. To the contrary, implementation of the policy was complete in August 2003, when the remaining four African-Americans were promoted off the list. Under the allegations of the complaint, Chief Fongs promotions in 2004 did not constitute application of the alleged discriminatory policy because there were no African-Americans left to promote.
Englers two principal cases, Valdez v. City of Los Angeles, supra, 231 Cal.App.3d 1043, and City and County of San Francisco v. Fair Employment & Housing Com., supra, 191 Cal.App.3d 976, are materially different from the present case. In Valdez, the plaintiff alleged the oral examinations used to rate candidates for promotion discriminated against Hispanics. (Valdez, at p. 1048-1049.) Similarly, City and County of San Francisco concerned use of an allegedly discriminatory written examination, which resulted in a disparity in the relative rankings of African-American and Caucasian firefighters on a promotion eligibility list. (City and County of San Francisco, at pp. 980-981.) In both cases, discriminatory testing policies created sets of rankings or ratings which were themselves discriminatory. The courts did not deny the need for a discriminatory act within the limitations period; instead, each promotion off a tainted list constituted implementation of the discriminatory policy. (Valdez, at p. 1053-1054; City and County of San Francisco, at p. 983; see also Alch v. Superior Court, supra, 122 Cal.App.4th at pp. 375-376.)
The discriminatory policy cases cited by Richards, supra, 26 Cal.4th at p. 813, also involved discriminatory acts within the limitations period. (See Williams v. Owens-Illinois, Inc., supra, 665 F.2d at pp. 922, 924-925 & fn. 3 [ongoing policy of race and sex discrimination in promotions and placements]; E.E.O.C. v. Local 350, Plumbers and Pipefitters (9th Cir. 1992) 982 F.2d 1305, 1307-1309 [policy discriminating against retirees in hiring hall]; Abrams v. Baylor College of Medicine (5th Cir. 1986) 805 F.2d 528, 533-534 [policy of discrimination against Jews in staffing Saudi Arabian hospital]; Bartmess v. Drewrys U.S.A., Inc. (7th Cir. 1971) 444 F.2d 1186, 1188 [compulsory retirement policy discriminating against women]; see also Alch v. Superior Court, supra, 122 Cal.App.4th at p. 370 [the discriminatory policy aspect of the continuing violation doctrine "seeks relief for discrimination during the limitations period"].)
Engler contends Chief Fongs promotions were impacted by Chief Fagans discriminatory promotions because the 2003 promotions affected the list of candidates remaining in 2004. However, "`mere "continuing impact from past violations is not actionable."" (Morgan, supra, 88 Cal.App.4th at p. 64; see also United Air Lines, Inc. v. Evans (1977) 431 U.S. 553, 558 [a seniority system which "gives present effect to a past act of discrimination" is not actionable because "the critical question is whether any present violation exists"]; Williams v. Owens-Illinois, Inc., supra, 665 F.2d at p. 925, fn. 3 ["A continuing violation should be distinguished from the continuing impact of a past, yet discrete and no longer existent discriminatory act"].) Englers failure to allege a discriminatory act after 2003 is fatal to his continuing violation claim.
The trial court did not err in granting defendants motion for judgment on the pleadings.
II. Motion for Summary Judgment
A ruling on a summary judgment motion is reviewed de novo to determine whether there are any triable issues of material fact. (Code Civ. Proc., § 437c, subd. (c); Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612.)
In moving for summary judgment, defendant sought to show that Engler could not make a prima facie showing of discrimination and that Chief Fongs promotion decisions in 2004 were made for legitimate, nondiscriminatory reasons. (See Valdez, supra, 231 Cal.App.3d at p. 1051.) Defendant pointed out that eleven of the candidates promoted by Chief Fong were Caucasian, two were Hispanic, and one was Asian. The motion included a declaration from Chief Fong denying she considered race in making the promotion decisions and explaining the legitimate reasons underlying the selection of each of the 14 candidates promoted to the rank of Lieutenant in 2004. Defendant also pointed out that Engler, in his deposition, could identify no evidence that his race played any role in Chief Fongs decision making in 2004.
In response to the summary judgment motion, Engler offered no evidence that Chief Fong discriminated against him, that she considered any candidates race in making the 2004 promotions, or that the reasons she gave to justify her decisions were pretextual. Instead, he referred to the evidence that race played a role in Chief Fagans 2003 promotions. Engler does the same on appeal. Because that evidence fails to rebut defendants showing that Chief Fongs 2004 promotions were not discriminatory, the trial court properly granted defendants motion for summary judgment.
DISPOSITION
The judgment is affirmed.
We concur:
JONES, P.J.
NEEDHAM, J.