California Court of Appeals, Second District, Fourth Division
modified Aug. 22, 2016.
from a judgment of the Superior Court of Los Angeles County,
No. BC550911, Yvette M. Palazuelos, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
McNeill & Wyatt, Rodney S. Diggs and Elvin I. Tabah for
Plaintiff and Appellant.
D. Harris, Attorney General, Chris A. Knudsen, Assistant
Attorney General, Gary S. Balekjian and Mark Schreiber,
Deputy Attorneys General, for Defendant and Respondent.
by Epstein, P. J., with Willhite and Manella, JJ.,
Cal.Rptr.3d 263] EPSTEIN, P. J.
Appellant Reginald Mitchell sued his former employer,
respondent State Department of Public Health (the
Department), for racial discrimination in violation of the
California Fair Employment and Housing Act (FEHA) (Gov. Code,
§ 12900 et seq.). The trial court dismissed the
complaint after sustaining a demurrer on the statute of
limitations ground. In this appeal from the judgment of
dismissal, we find the allegations of the complaint are
sufficient to establish a claim of equitable tolling, and
AND PROCEDURAL BACKGROUND
was employed by the Department as a health facilities
investigator. He was the only non-white employee in his
division. Mitchell resigned
from the Department in 2011 after complaining to his employer
that he was being discriminated against because of his race
(African-American). He filed his original complaint with the
United States Equal Employment Opportunity Commission (EEOC).
Pursuant to a work sharing agreement between the Department
of Fair Employment and Housing (DFEH) and EEOC, EEOC
automatically lodged a copy of the complaint with DFEH. DFEH
issued a right-to-sue notice and deferred investigation of
the charges to EEOC.
September 9, 2011 right-to-sue notice issued by DFEH stated
in relevant part that " EEOC will be responsible for the
processing of this complaint. DFEH will not be conducting an
investigation into this matter. EEOC should be contacted
directly for any discussion of the charge. DFEH is closing
its case on the basis of 'processing waived to another
agency.' [¶ ] NOTICE TO COMPLAINANT OF RIGHT-TO-SUE
[¶ ] Since DFEH will not be issuing an accusation, this
letter is also your right-to-sue notice. According to
Government Code section 12965, subdivision (b), you may bring
a civil action under the provisions of the [FEHA] against the
person, employer, labor organization or employment agency
named in the above-referenced complaint. The lawsuit may be
filed in a State of California Superior Court. Government
Code section 12965, subdivision (b), provides that such a
civil action must be brought within one year from the date of
this notice. Pursuant to Government Code section 12965,
subdivision (d)(1), this one-year period will be [205
Cal.Rptr.3d 264] tolled during the pendency of the EEOC's
investigation of your complaint. You should consult an
attorney to determine with accuracy the date by which a civil
action must be filed. This right to file a civil action may
be waived in the event a settlement agreement is signed.
Questions about the right to file under federal law should be
referred to the EEOC. [¶ ] The DFEH does not retain case
records beyond three years after complaint is filed. [¶
] Remember: This Right-To-Sue Notice allows you to file a
private lawsuit in State court."
issued its letter of determination on September 30, 2013,
stating there was " reasonable cause" to believe
Mitchell had suffered racial discrimination in violation of
title VII of the Civil Rights Act of 1964 (42 U.S.C. §
2000e et seq.; Title VII). After conciliation efforts failed,
the Department of Justice issued a federal right-to-sue
notice, which Mitchell received on March 21, 2014.
filed his FEHA civil action for racial discrimination on July
8, 2014. This was 19 days beyond the 90-day federal
right-to-sue period, which, as we shall explain, is the basis
for the Department's statute of limitations defense. In