Mitchell v. State Dept. of Public Health

         As modified Aug. 22, 2016.

          APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC550911, Yvette M. Palazuelos, Judge.

          Reversed.

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         COUNSEL

         Ivie, McNeill & Wyatt, Rodney S. Diggs and Elvin I. Tabah for Plaintiff and Appellant.

         Kamala D. Harris, Attorney General, Chris A. Knudsen, Assistant Attorney General, Gary S. Balekjian and Mark Schreiber, Deputy Attorneys General, for Defendant and Respondent.

         Opinion by Epstein, P. J., with Willhite and Manella, JJ., concurring.

          OPINION

          [205 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.).^[1] 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 reverse.

         FACTUAL AND PROCEDURAL BACKGROUND

         Mitchell was employed by the Department as a health facilities investigator. He was the only non-white employee in his division. Mitchell resigned

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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.

         The 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),^[2] 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."

         EEOC 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.

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         Mitchell 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 anticipation ...