ORDER RE: EX PARTE APPLICATION FOR ORDER REOPENING TIME TO FILE MOTION FOR JUDGMENT ON THE PLEADINGS AND/OR MOTION TO DISMISS (Doc. 55)
Defendant CCA of Tennessee, LLC (erroneously sued as California City Correction Center) has filed an ex parte application for order reopening time to file a motion for judgment on the pleadings and/or motion to dismiss. For reasons discussed below, the application shall be granted conditionally for the limited purpose of conducting a second round of summary judgment proceedings.
II. FACTS AND PROCEDURAL BACKGROUND
On February 22, 2011, plaintiff Anita Washington (hereinafter referred to as "Plaintiff") filed the third and final iteration of her first amended complaint against defendants California City Correction Center, CCA of Tennessee, LLC and Does 1 to 20, asserting causes of action for (1) discrimination, (2) wrongful termination in violation of public policy, (3) failure to prevent discrimination, (4) retaliation, (5) intentional infliction of emotional distress and (6) defamation. The first through fifth causes of action were asserted solely against defendant CCA of Tennessee, LLC (hereinafter referred to as "Defendant"); the sixth cause of action was asserted against all defendants.
On February 28, 2011, Defendant filed a motion to dismiss the sixth cause of action for defamation pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court (Wanger, J.) granted Defendant's motion to dismiss the sixth cause of action with leave to amend on April 25, 2011 and directed Plaintiff to file a second amended complaint within ten days of entry of the order. Washington v. California City Correction Center, slip copy, 2011 WL 1566742 (E.D.Cal. April 25, 2011) (Washington I), at *5-*6. No second amended complaint was ever filed by Plaintiff.
On March 30, 2012, Defendant filed a motion for summary judgment or summary adjudication in the alternative pursuant to Federal Rule of Civil Procedure 56. In an order issued May 9, 2012, the Court granted summary adjudication in favor of Defendant as to the second and fourth causes of action for wrongful termination in violation of public policy and retaliation, but denied summary adjudication as to the first, third and fifth causes of action for discrimination, failure to prevent discrimination and intentional infliction of emotional distress. Washington v. California City Correction Center, slip copy, 2012 WL 1657579 (E.D.Cal. May 10, 2012) (Washington II).
On May 21, 2012, Defendant filed an ex parte application for order reopening time to file a motion for judgment on the pleadings and/or motion to dismiss, contending such motions are necessary and appropriate because the remaining claims are outside the Court's subject matter jurisdiction. In particular, Defendant contends the discrimination-related causes of action are barred under the one-year statute of limitations for exhaustion of administrative remedies under the California Fair Employment and Housing Act (FEHA, Cal. Gov. Code, §§ 12900 et seq.). Defendant further contends the cause of action for intentional infliction of emotional distress is barred by the exclusive remedies available under California's Workers' Compensation Act (WCA, Cal. Lab. Code, §§ 3200 et seq.). Neither issue was raised in Defendant's motion for summary judgment.
On May 22, 2012, the Court reviewed Defendant's ex parte application and found it raised significant issues. Accordingly, the Court directed Plaintiff to file a response.
On May 24, 2012, Plaintiff filed her opposition to Defendant's ex parte application, contending there were actionable adverse employment actions occurring within FEHA's one-year statute of limitations. Plaintiff further contends emotional distress injuries resulting from unlawful discrimination are exempted from the WCA exclusivity provisions.
A. FEHA statute of limitations -- As a threshold matter, Defendant contends Plaintiff's causes of action for discrimination and failure to prevent discrimination are barred as a matter of law because Plaintiff did not file an administrative complaint within one year of her September 2007 demotion from Senior Correctional Officer to Correctional Officer, the adverse employment action underpinning the foregoing causes of action. FEHA provides that subject to certain statutory exceptions, "No [administrative] complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred[.]" Cal. Gov. Code, § 12960, subd. (d). "[A]ny conduct occurring [outside this time frame] cannot serve as the basis for liability [under FEHA] unless some exception to the one-year limitations period applies." Cucuzza v. City of Santa Clara, 104 Cal.App.4th 1031, 1040, 128 Cal.Rptr.2d 660 (2002). In this case, Plaintiff filed her administrative complaint on January 26, 2009. The only adverse employment actions occurring within one year of the complaint were the allegedly false accusations made against Plaintiff and Plaintiff's termination; Plaintiff's demotion predated the complaint by more than one year. Thus, Plaintiff may not rely on the demotion as a basis for the discrimination or failure to prevent discrimination claims unless an exception to the one-year limitations period applies.
Section 12960, subdivision (d) "identifies four exceptions: (1) a 90-day extension in instances of delayed discovery of the unlawful practice; (2) a one-year extension in certain instances of delayed discovery of the identity of the actual employer; (3) a one-to-three-year extension for Ralph Hate Crimes Act ([Cal.] Civ. Code, § 51.7) violations in cases of delayed discovery of the perpetrator's identity; and (4) an extension of one year after an aggrieved party achieves the age of majority if the misconduct occurred while the party was a minor[.]" McDonald v. Antelope Valley Community College Dist., 45 Cal.4th 88, 106-107, 84 Cal.Rptr.3d 734, 194 P.3d 1026 (2008) (citing Cal. Civ. Code., § 12960, subd. (d)(1)-(4)). The record, however, contains no evidence to support the application of any of these exceptions. In McDonald, supra, the California Supreme Court held that, aside from the foregoing exceptions, the one-year statute of limitations could be equitably tolled where the employee voluntarily pursues an internal administrative grievance procedure. 44 Cal.4th at 108-114. Problematically for Plaintiff, there is no evidence to suggest Plaintiff ever pursued an internal grievance procedure. The only internal "procedure" Plaintiff arguably took was to complain to another supervisor about her immediate supervisor's discriminatory conduct. Plaintiff has provided no authority -- and the Court's research reveals no authority -- to suggest this action could conceivably support equitable tolling. Accordingly, Plaintiff is barred from pursuing recovery for acts of discrimination occurring more than one year before January 26, 2009. Thus, to the extent the discrimination and failure to prevent discrimination claims are premised on the September 2007 demotion (and any misconduct predating the demotion), the claims should be dismissed.
In her opposition to Defendant's ex parte application, Plaintiff now contends there was a separate, independently actionable adverse employment action aside from the September 2007 demotion that occurred within the FEHA one-year statute of limitations. In support of this contention, Plaintiff points to her declaration, submitted in opposition to Defendant's motion for summary judgment or summary adjudication, wherein Plaintiff testified as follows:
"In or around September or October 2008, I asked Mr. Guzman not to place me in transit because the high blood pressure medication I was taking made me drowsy. He placed me in transit anyways and I was demoted to the position of Correction ...