Opinion
No. C 02-01757 CRB
July 11, 2002
MEMORANDUM AND ORDER
Plaintiff alleges defendant American Airlines refused to hire him as an airline pilot because of his age. Now before the Court is defendants' motion to dismiss and to strike. After carefully considering the papers filed by the parities, the Court concludes that oral argument is unnecessary, see Local Rule 7-1(b), and GRANTS the motion to dismiss and strike in part.
BACKGROUND
Plaintiff is an experienced pilot with American Eagle Airlines. In February 1998 he applied for a pilot position with defendant American Airlines ("American"). Complaint ¶ 8. On September 9, 1998, plaintiff received a letter from defendant stating that his application would not be considered because of his age. Id. ¶ 21. On December 7, 2000, plaintiff applied for the same position through a "flow through" agreement between American and American Eagle Airlines. Id. ¶ 8. On January 11, 2001, plaintiff received a letter from American Eagle stating that plaintiff did not qualify for a pilot position with American because he was over the age of 50. Id. Plaintiff alleges further that American had and continues to have a policy of requiring pilot applicants to be under the age of 50. Id. ¶ 11.
Plaintiff filed an administrative charge of age discrimination with the Equal Employment Opportunity Commission ("EEOC") and California Department of Fair Employment and Housing ("DFEH") on March 6, 2001. The DFEH issue a "Right-to-Sue" Notice on March 19, 2001 and plaintiff filed this lawsuit on March 8, 2002. Plaintiff makes two claims: refusal-to-hire age discrimination in violation of the California Fair Employment and Housing Act ("FEHA") and a claim for refusing to hire him in violation of California public policy.
Defendants move to dismiss the public policy claim on the ground that is barred by the one year statute of limitations. They also move to strike the allegations as to the 1998 refusal to hire on the ground that plaintiff's claims, to the extent they are based on the 1998 conduct, are time-barred. Finally, defendant AMR Corporation, American's parent corporation, moves to dismiss on the ground the complaint does not state a claim against it.
DISCUSSION
A. The Public Policy Claim
The statute of limitations for a claim for a violation of California public policy based upon a discriminatory refusal to hire is one year. See Acuna v. Regents of Univ. of California, 56 Cal. App. 4th 639, 646 (1997); Barton v. New United Motor Mfg., Inc., 43 Cal. App. 4th 1200, 1209 (1996). Plaintiff's public policy claim arose — at the latest — on January 11, 2001, when American Eagle notified him that he was not qualified for the American position because of his age. Yet plaintiff's public policy claim was not filed until March 8, 2002 — more than one year after the cause of action arose.
Plaintiff responds that under the doctrine of "equitable tolling" his violation of public policy claim is timely. He argues that since his public policy claim arises out of the same facts as his FEHA claim, it would refusal to hire, and then require him to later file his FEHA claim after the administrative process is completed. As support for his argument he relies on the Ninth Circuit's decision in Salgado v. Atlantic Richfield Co, 823 F.2d 1322 (9th Cir. 1987). In Salgado, the Ninth Circuit held that an on-going EEOC investigation tolls the statute of limitations on a California FEHA claim since when a charge of discrimination is timely filed concurrently with the EEOC and the DFEH, the DFEH defers investigation of the complaint to the EEOC. The court concluded that the limitations period for the FEHA claim is tolled until the plaintiff receives a right-to-sue letter from the EEOC. The California Court of Appeals followed Salgado in Downs v. Dep't of Water and Power, 58 Cal. App. 4th 1093 (1997): "When a charge of discrimination or harassment is timely filed concurrently with the EEOC and the DFEH, the investigation of the charge is deferred by the DFEH to the EEOC under a work-sharing agreement; and the DFEH issues a right-to-sue letter upon deferral, then the one-year period to bring a FEHA action is equitably tolled during the pendency of the EEOC investigation until a right-to-sue letter from the EEOC is received." Id. at 1102.
Salgado and Downs do not apply to plaintiff's common law public policy claim. First, on their face they hold merely that a FEHA claim is tolled during the pendency of an EEOC investigation. Although plaintiff filed an administrative claim with the EEOC and the DFEH, he is not seeking to toll a Title VII claim or his FEHA claim; instead, he is seeking to toll his common law public policy claim.
Second, plaintiff fails to cite any California case, and the Court is aware of none, which suggests that the California courts would recognize equitable tolling under these circumstances. In Estes v. Alliedsignal, Inc., 1998 WL 814638 (N.D. Cal. Nov. 12, 1998), for example, the court concluded that Salgado does not toll a common law claim arising film the same facts as a plaintiff's FEHA claim. The court reasoned that Salgado's tolling rule was based on the fact that the FEHA claim "allowed for the same procedures and remedies as plaintiff's Title VII claim," id. at *11, but that a similarity of procedures and remedies does not exist for a FEHA claim and a common law emotional distress claim. The court also relied on the Supreme Court's decision in Johnson v. Railway Express Agency. Inc., 421 U.S. 454 (1975), in which the Court held that the filing of a discrimination charge with the EEOC does not toll the statute of limitations for a related section 1981 claim because the two claims provide for separate and independent legal remedies. Id. at 460-61; see also Estes, 1998 WL 814638 at *11 (discussing Johnson). Thus, it is unlikely the California courts would hold that the filing of an administrative claim with the DFEH equitable tolls the statute of limitations on a plaintiff's related common law claims.
Indeed, the California Supreme Court has opined that a plaintiff can pursue both a public policy claim and a FEHA claim by "amending his or her complaint to join the FEHA cause of action once the [DFEH] has issued a right-to-sue letter." Rojo v. Kliger, 52 Cal.3d 65, 88 (1990).
Accordingly, plaintiff's claim for refusal to hire in violation of public policy must be dismissed on the ground that it is barred by the statute of limitations and, under the facts and theory proffered by plaintiff, equitable tolling does not apply as a matter of law.
B. The 1998 Refusal to Hire
Defendants move to strike the allegations of the complaint referring to American's refusal to hire plaintiff in 1998 on the ground that to the extent plaintiff's FEHA claim is based on the 1998 refusal to hire such claim fails because plaintiff did not timely exhaust his administrative remedies. To proceed in court on a FEHA claim a plaintiff must file an administrative charge with the DFEH within one year of the discriminatory act See Cal. Gov't Code § 12960. Plaintiff filed his administrative charge in 2001, significantly more than a year after American refused to hire him in 1998.
Plaintiff responds that defendants may be liable for their 1998 conduct because their refusal to hire plaintiff because of his age is a "continuing violation" He argues that an employer may be liable for conduct occurring outside the limitations period if the conduct is sufficiently connected to unlawful conduct within the period. Here, contends plaintiff, defendants' refusal to hire him in 2001 in accordance with their discriminatory age policy is sufficiently connected to their 1998 refusal to hire him in accordance with the same policy and therefore plaintiff may recover for the 1998 conduct.
The Court is unpersuaded that the continuing violation doctrine applies here. Plaintiff has not cited any case, and Court's research has not uncovered any, in which the continuing violation doctrine applied to an employer's refusal to hire. In Richards v. CH2M Hill, 26 Cal. 4th 801, 802 (2001), the California Supreme Court applied the doctrine to a claim based on an employer's series of unlawful actions in a case of failure to reasonably accommodate an employee's disability and disability harassment. The Court held that "an employer's persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment targeting a disabled employee, is a continuing violation if the employer's unlawful actions are (1) sufficiently similar in kind-recognizing . . .; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence." Id. at 823. With respect to the "lack of permanence" requirement; the Court explained that
when an employer makes it clear that it will not further accommodate an employee, justification for delay in taking formal legal action no longer exists. The employer has made clear in word and deed that the employee's attempted further reasonable accommodation is futile, then the employee is on notice that litigation, not informal conciliation, is the only alternative for the vindication of his or her rights. Barring a constructive discharge, it is at that point the statute of limitations for the violation begins to run.
Id. Thus, under California law, if the employer's conduct has acquired a degree of permanence such that there is no reasonable justification for an employee to delay filing suit; the continuing violations doctrine does not apply.
Under the facts as alleged by plaintiff he did not suffer a continuing violation but rather two different violations: one in 1998 and one in 2001. Because plaintiff did not have an ongoing employment relationship with defendants, defendants were not "continually" discriminating against him instead, they allegedly unlawfully discriminated against him when he applied for a position in 1998 and unlawfully discriminated against him again in 2001 when he applied for a postion. As the Ninth Circuit has noted, "[a] refusal to hire or a decision to fire an employee may place the victim out of reach of any further effect of company policy, so that such a complainant must file a charge within the requisite time period alter the refusal to hire or termination, or be time-barred . . . [M]ere `continuing impact from past violations is not actionable. Continuing violations are.'" Williams v. Owens-Illinois. Inc., 665 F.2d 918, 924 (9th Cir. 1982); see also Kotev v. First Colony Life Ins. Co., 927 F. Supp. 1316, 1320 (C.D. Cal. 1996) ("a discriminatory termination or refusal to hire is not a continuing violation.").
Moreover, the allegedly discriminatory conduct — refusing to hire plaintiff because of his age — has not occurred with frequency as is required for the continuing violation doctrine to apply under California law; instead, the conduct occurred twice in two and one-half years, the two times plaintiff applied for a position In addition, defendants' 1998 refusal to hire was permanent; they flatly refused to consider plaintiff's application because of his age. There is no justification for plaintiff's failure to file suit after
American refused to hire him in 1998. He was on notice at that time that the only alternative for vindication of his rights was litigation. Accordingly, defendants are not liable for their refusal to hire plaintiff in 1998. As plaintiff's FEHA claim fails to the extent it is based on defendants' failure to hire plaintiff in 1998, defendants' motion to strike the 1998 allegations must be granted.
C. The Claims Against AMR Corporation
Defendant AMR Corporation ("AMR"), American's parent corporation, moves to dismiss on the ground the complaint does not make any specific allegations as to AMR. The complaint; however, alleges generally that AMR was at all relevant times American's agent. Such an allegation is sufficient at this stage in the litigation. AMR's reliance on In Re ZZZZ Best Securities Litigation, 1990 WL 132715 (N.D. Cal. 1990), is unavailing. In that case the plaintiff's claim sounded in fraud and therefore plaintiff had to comply with Federal Rule of Civil Procedure 9 (b). Rule 9(b) does not apply to this action and therefore neither does ZZZZ Best.
CONCLUSION
For the foregoing reasons, plaintiff's claim for violation of California public policy is DISMISSED and the allegations as to the 1998 refusal to hire are STRICKEN. The dismissal is without leave to amend as amendment would be futile in light of the Court's legal rulings. Defendant AMR's motion to dismiss the FEHA claim is DENIED.
IT IS SO ORDERED.