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Carroll v. City and County of San Francisco

California Court of Appeals, First District, Fourth Division

October 31, 2019

JOYCE CARROLL, Plaintiff and Appellant,
v.
CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

          San Francisco City & County Superior Court No. CGC-17-562580 Hon. Mary E. Wiss Judge

          Aiman-Smith & Marcy, Randall B. Aiman-Smith, Reed W. L. Marcy, Hallie L. Von Rock, Carey A. James, Brent A. Robinson, for Plaintiff and Appellant.

          Dennis J. Herrera, City Attorney, Katherine H. Porter, Joseph M. Lake, Deputy City Attorneys, for Defendants and Respondents.

          BROWN, J.

         Plaintiff Joyce Carroll appeals the trial court's entry of a stipulated dismissal with prejudice of her age discrimination complaint under the Fair Employment and Housing Act (FEHA) (Gov. Code, [1] § 12900 et seq.). The dismissal followed the court's order sustaining defendants' demurrer on the ground that plaintiff did not file a complaint with the Department of Fair Employment and Housing (DFEH) within one year of the date the alleged unlawful employment practice occurred. (§ 12960, subd. (d).) We conclude that plaintiff's disparate treatment and disparate impact claims were timely with respect to the allegedly discriminatory disability retirement payments plaintiff received within one year of the date on which she filed her DFEH complaint. We therefore reverse the judgment.

         BACKGROUND

         Plaintiff was 43 years old when she began working for the City and County of San Francisco (City or defendants). She worked for the City for approximately 15 years before retiring at age 58 due to rheumatoid arthritis. On June 22, 2000, plaintiff applied for disability retirement, and the City granted her request “[s]hortly thereafter.” Since then, plaintiff has received monthly disability retirement benefit payments from defendants.

         Plaintiff brought a putative class action lawsuit on behalf of herself and others similarly situated, alleging that defendants discriminate on the basis of age in violation of FEHA by providing reduced disability retirement benefits to older employees who took disability retirement after working for the City for less than 22.22 years.

         The Charter for the City and County of San Francisco (Charter) contains the formula that defendants use to calculate the benefit for employees who retire due to disability.[2] Charter section A8.584-3 applies to individuals, like plaintiff, who were classified as miscellaneous employees and who began working for the City after November 1, 1976. Charter section A8.584-3 provides the following formula for disability benefits for employees whose retirement allowance does not exceed one-third of their average final compensation: “11/2 percent of [the employee's] average final compensation multiplied by the number of years of City service which would be credited to [the employee] were such City service to continue until attainment by [the employee] of age 60.”[3] Under this formula, when an employee has worked for the City for at least 10 years but must retire due to disability, the City credits additional service time to the employee to increase his or her disability retirement benefit if his or her retirement allowance falls below one-third of his or her average final compensation. However, the City limits this imputed service time to the number of years the disabled employee would have worked for the City had he or she continued City employment until age 60. Defendants referred to these imputed service years as “bonus years” in the letter to plaintiff explaining her retirement disability calculation.

         For example, plaintiff retired at age 58 after 15 years of service with two “bonus years, ” resulting in approximately 17 years of service. Defendants credited her with 16.75 years of service, estimating her retirement benefit to be “equal to 25.125% of her final average salary.” In contrast, an employee who was hired at age 18 with 15 years of service and 27 years of imputed service, resulting in a total of 42 years of service, would receive a retirement benefit of 33.33 percent of her final average salary (Charter, § A8.584-3 sets a maximum benefit of one-third). Plaintiff alleges that because Charter section A8.584-3 provides employees who were hired over the age of 40 with “reduced retirement benefit[s], ” defendants violate FEHA by intentionally discriminating against these employees on the basis of age and by using a standard policy that has a disparate impact on older employees.

         Plaintiff alleged that she became aware that defendants paid her retirement benefits based on her age after seeing an advertisement on or about July 20, 2017, which was more than 17 years after her retirement. She filed her complaint with the DFEH on November 17, 2017.

         Defendants demurred, arguing that the statute of limitations barred her claims because she failed to timely file an administrative charge with the DFEH. The court sustained the demurrer with leave to amend to allow the substitution of a new named representative to properly represent the class. Plaintiff appealed.[4]

         DISCUSSION

         I. Standard of Review

         When a trial court sustains a demurrer, we independently review the complaint to determine whether it states a valid cause of action, accepting all factual allegations as true. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We construe the allegations liberally and draw all reasonable inferences in the plaintiff's favor. (Coleman v. Medtronic, Inc. (2014) 223 Cal.App.4th 413, 422.) “ ‘A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.' ” (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) When a court sustains a demurrer without leave to amend, we review for abuse of discretion the determination that amendment could not cure the defects, reversing only if the plaintiff bears his or her burden of establishing a reasonable possibility that amendment could cure the defects. (Brown v. Deutsche Bank National Trust Co. (2016) 247 Cal.App.4th 275, 279.)

         II. FEHA

         FEHA is a comprehensive statutory scheme. (§§ 12900-12996.) Section 12920 declares it the “public policy” of California to “protect and safeguard” the rights of employees against discrimination. It also states that “the practice of denying employment opportunity and discriminating in the terms of employment... foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of employees, employers, and the public in general.” The statute concludes: “It is the purpose of this part to provide effective remedies that will eliminate these discriminatory practices.”

         Plaintiff argues that defendants' payment of disability retirement benefits is discriminatory on the basis of age, in violation of FEHA. Under section 12940, subdivision (a), it is unlawful “[f]or an employer, because of the... age... of any person, ... to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”

         Defendants demurred to plaintiff's complaint on the ground that it was barred by the one-year statute of limitations for filing an administrative complaint with DFEH. Compliance with the statute of limitations for filing a DFEH complaint is a prerequisite to a civil action for damages under FEHA (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 63 (Morgan)), and the statute of limitation runs “from the date upon which the alleged unlawful practice or refusal to cooperate occurred.” (§ 12960, subd. (d), italics omitted; Morgan, at p. 63). We consider whether plaintiff's disparate treatment and disparate impact claims were timely under FEHA.

         III. The Disparate Treatment Claim

         A.

         The parties disagree as to what triggered the running of FEHA's limitations period. Defendants contend that the limitations period began running in 2000 when they granted plaintiff's request for disability retirement. Plaintiff argues that her disparate treatment claim is timely under what she calls the “continuous accrual doctrine”; the theory underlying her argument is that each discriminatory disability retirement check she received constituted a new FEHA violation.[5] We thus must decide whether an unlawful employment practice occurred only when defendants granted plaintiff's request for disability retirement benefits or whether an unlawful practice occurred each time plaintiff received an allegedly discriminatory disability retirement check. For reasons explained below, we believe that an unlawful event occurred each time plaintiff received a discriminatory payment, such that a new limitations period applies to each allegedly discriminatory check.

         The parties do not cite California authority directly addressing whether each paycheck rendered pursuant to an alleged discriminatory compensation or benefits scheme is separately actionable under FEHA.[6] We thus begin by reviewing ...


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