Wassmann v. South Orange County Community College Dist.

Facts

The California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) “affords California employees broad protection against discrimination, harassment, and retaliation on any of a wide range of impermissible bases.” (Wassmann, supra, 24 Cal.App.5th at p. 843, quoting McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 106.) But the statute conditions suit on timely administrative exhaustion. An aggrieved employee “must exhaust administrative remedies by timely filing an administrative complaint with the [Department of Fair Employment and Housing] and receiving a right-to-sue notice,” and that complaint “must be filed with the DFEH within one year of the date on which the alleged unlawful practice occurred.” (Id. at p. 850, citing Gov. Code, § 12960, subds. (b), (d), and § 12962, subd. (c).) “[O]rdinarily, a plaintiff cannot recover for acts occurring more than one year before the filing of the DFEH complaint.” (Ibid.) Layered over that bar is the continuing-violation doctrine, under which “a plaintiff may recover for unlawful acts occurring outside the limitations period if they continued into that period,” provided the plaintiff proves the three-part test the court would later apply. (Id. at pp. 850–851.)

Carol E. Wassmann, who is African-American, was employed by the South Orange County Community College District as a public-service librarian at Irvine Valley College from August 2005 until April 28, 2011. (Wassmann, supra, 24 Cal.App.5th at pp. 831–832.) Beginning in 2009, her dean and supervisor, Karima Feldhus, documented a series of performance and conduct problems: a September 2009 “Notice of Unsatisfactory Performance and Unprofessional Conduct”; missed staff meetings; refusals to perform assigned tasks; repeated episodes of locking her office door and refusing to meet without a union representative; chronic absenteeism; and late reports. (Id. at pp. 833–838.) Wassmann attributed Feldhus’s treatment to race, testifying that, because Feldhus is Algerian, she treated African-Americans “as either ‘field slaves’ or ‘house slaves.’” (Id. at p. 833.)

On March 29, 2010, the college president issued a “Notice to Correct Deficiencies” addressing 18 events and supported by 32 exhibits. (Wassmann, supra, 24 Cal.App.5th at pp. 836–837.) Wassmann believed “all but two issues” were “fabricated,” did not change her conduct, and continued working as before. (Id. at p. 837.) After further incidents through October 2010, the District issued a statement of charges on November 4, 2010, recommending dismissal for unprofessional conduct, unsatisfactory conduct, and evident unfitness for service under Education Code section 87732. (Id. at pp. 838–839.) The District’s board authorized a “Statement of Decision to Dismiss” on March 28, 2011, and Wassmann was officially dismissed effective April 28, 2011. (Id. at pp. 839–840.)

Procedural history

Wassmann objected to the District’s decision and demanded a hearing. (Wassmann, supra, 24 Cal.App.5th at p. 840.) An administrative law judge from the Office of Administrative Hearings presided over a five-day evidentiary hearing in January 2012, at which witnesses testified under oath and were cross-examined, documentary evidence was received, and the parties submitted written closing briefs; Wassmann was represented by counsel. (Ibid.) In August 2012, the ALJ issued a 20-page decision making 60 separate findings, upholding the District’s charges, and determining there was cause to dismiss. (Id. at pp. 840–841.) “The decision does not refer to any claims based on racial discrimination, age discrimination, harassment, or hostile work environment.” (Id. at p. 841.) Wassmann challenged the decision by petition for writ of mandate, arguing only that the findings were against the weight of the evidence; she “did not raise racial discrimination, age discrimination, or harassment.” (Ibid.) In August 2013, the superior court, exercising independent judgment, denied the petition. (Ibid.)

Only in December 2013 — after the mandate denial — did Wassmann file a DFEH charge and obtain a right-to-sue notice, then file this lawsuit. (Wassmann, supra, 24 Cal.App.5th at pp. 841–842.) Her second amended complaint pleaded age discrimination, racial discrimination, harassment, wrongful termination, intentional infliction of emotional distress, and unfair business practices. (Id. at p. 842.) The trial court, Judge Frederick P. Aguirre presiding, granted two summary-judgment motions — one by the District Defendants and one by union officers Long and Schmeidler — concluding the FEHA claims were barred by res judicata, collateral estoppel, or failure to exhaust, and the emotional-distress claim was barred as derivative and by the statute of limitations. (Id. at pp. 832, 842.) Joint judgment was entered in June 2016, and Wassmann, in propria persona, appealed. The Court of Appeal, Division Three of the Fourth Appellate District, affirmed in a unanimous opinion by Acting Presiding Justice Fybel, with Justices Thompson and Goethals concurring; there was no dissent. (Id. at pp. 831, 854.)

Issue

Several issues were presented, but the one this article foregrounds — the continuing-violation question featured in CACI No. 2508 — was whether Wassmann could reach back to recover for discrimination and harassment occurring more than one year before her December 2013 DFEH charge. Wassmann “suggest[ed] the District Defendants continued to engage in unlawful conduct after her dismissal date by submitting falsified evidence at the administrative hearing and opposing her petition for writ of mandate,” thereby invoking the continuing-violation doctrine to bridge the limitations gap. (Wassmann, supra, 24 Cal.App.5th at p. 850.) The precise question was thus whether post-termination litigation conduct could satisfy the three-part continuing-violation test so as to render timely the otherwise stale pre-termination FEHA claims. Surrounding that issue were two threshold rulings: whether the binding administrative finding of cause precluded the FEHA claims insofar as they sought redress for the termination, and whether the common-law emotional-distress claim was timely. Review was de novo. (Id. at p. 843.)

Holding

Reasoning

The binding administrative finding of cause for dismissal precluded the termination-based FEHA claims. The court first established that the Education Code dismissal scheme (Ed. Code, § 87660 et seq.) afforded a full quasi-judicial process — written charges, an objection “on any ground,” a five-day evidentiary hearing before a neutral ALJ, sworn testimony, discovery, cross-examination, written argument, a reported record, and a reasoned statement of decision — and that the proceeding therefore “bore all of those indicia” of judicial character required for collateral-estoppel effect. (Wassmann, supra, 24 Cal.App.5th at pp. 844–847, applying Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 944.) Under the doctrine of exhaustion of judicial remedies, once such a decision issues and the plaintiff fails to overturn it by writ of mandate, “the administrative decision is binding in a later civil action brought in superior court.” (Id. at p. 846, quoting Runyon v. Board of Trustees of California State University (2010) 48 Cal.4th 760, 773.) Because the statute permits objection “on any ground,” Wassmann “could have raised her claims of racial discrimination, age discrimination, and harassment as grounds for a finding of lack of cause to dismiss her,” but did not — and even her professed reference to race in the hearing failed for want of exhaustion, since she omitted it from her mandate petition. (Id. at pp. 847–848.) Following Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, the court held the ALJ’s cause finding meant the dismissal was “for proper reasons and not wrongful,” foreclosing relitigation of the termination as discriminatory. (Id. at pp. 848–849.)

Non-termination injuries required their own timely DFEH charge. The court then carefully partitioned the claims. Res judicata reached only the termination injury, because “a cause of action is ‘the right to obtain redress for a harm suffered,’” and the administrative proceeding had addressed only “the District’s decision to dismiss Wassmann.” (Wassmann, supra, 24 Cal.App.5th at p. 849 & fn. 3, quoting Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.) To the extent Wassmann sought recovery for distinct injuries — lost “employment-related opportunities” or “humiliation, mental anguish, emotional and physical harm” — those claims escaped preclusion but ran headlong into the exhaustion bar, because any such injury “would have occurred on or before April 28, 2011,” yet she did not file her DFEH charge until December 2013. (Id. at pp. 849–850.) The one-year deadline of Government Code section 12960 is “‘a jurisdictional prerequisite to resort to the courts.’” (Id. at p. 850.)

The continuing-violation doctrine failed on the permanence and similarity elements. This is the heart of the CACI No. 2508 analysis. Wassmann argued the District “continued to engage in unlawful conduct after her dismissal date by submitting falsified evidence at the administrative hearing and opposing her petition for writ of mandate.” (Wassmann, supra, 24 Cal.App.5th at p. 850.) The court recited the governing standard from Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 802: a continuing violation exists only on “proof that (1) the defendant’s actions inside and outside the limitations period are sufficiently similar in kind; (2) those actions occurred with sufficient frequency; and (3) those actions have not acquired a degree of permanence.” (Id. at pp. 850–851.) Applying the test, the court found two of the three elements unmet. As to similarity, “[t]he alleged acts of discrimination and harassment occurring outside the limitations period (before Dec. 2011) and inside the limitation periods (after Dec. 2011) are not at all similar.” (Id. at p. 851.) As to permanence, the District’s “alleged acts of discrimination and harassment ‘acquired a degree of permanence’ in April 2011, when Wassmann’s employment was terminated.” (Ibid.) Termination, in other words, is the paradigm of a “permanent” act that should signal to a reasonable employee that conciliation has failed and the time to sue has come.

The pleadings framed the issue, and the litigation-conduct theory had a fatal actor problem. The court reinforced its conclusion with two further observations. First, “the last wrongful act alleged in the second amended complaint was Wassmann’s employment termination in April 2011,” and the complaint “does not allege any acts of discrimination or harassment occurring after that date.” (Wassmann, supra, 24 Cal.App.5th at p. 851.) Because “the allegations of the second amended complaint framed the issues for the summary judgment motions,” Wassmann “could not defeat summary judgment with evidence of events after April 2011.” (Ibid., citing Lachtman v. Regents of University of California (2007) 158 Cal.App.4th 187, 197.) Second, the litigation-conduct theory failed on its own terms: to the extent Wassmann contended the ALJ discriminated against her by issuing a decision based on “‘unfounded and false’” information, “[t]he administrative law judge is not, however, an employee or agent of the District.” (Ibid.) The post-dismissal conduct she identified thus could not be attributed to the employer at all.

Pursuit of the dismissal remedy did not toll the limitations clock for other injuries. The court rejected the related tolling argument. Equitable tolling extends the DFEH-filing time “while the employee pursues an administrative remedy,” but here Wassmann “pursued a remedy only for the termination of her employment and not for any other injury.” (Wassmann, supra, 24 Cal.App.5th at p. 851, citing McDonald, supra, 45 Cal.4th at pp. 96, 106–108.) Those separate harms had to be charged “within one year of when the injury occurred, in no event later than one year from April 28, 2011.” (Ibid.)

The emotional-distress claim was time-barred and untolled. Finally, the court disposed of the common-law claim. Intentional infliction of emotional distress carries a two-year statute of limitations that begins to run “once the plaintiff suffers severe emotional distress as a result of outrageous conduct.” (Wassmann, supra, 24 Cal.App.5th at p. 853, quoting Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 889.) Wassmann began suffering distress “no later than April 28, 2011,” but did not sue until December 2013 — nearly 32 months later. (Id. at pp. 853–854.) Crucially, the clock was not tolled: “The statute of limitations on common law claims is not tolled while DFEH charges are pending because the aggrieved employee can simultaneously pursue statutory and common law remedies.” (Id. at p. 853, citing Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1189.) Nor did the Education Code proceeding toll the claim, because that forum “could not provide a legal remedy” for emotional distress: even if proved, the tort “would not in and of itself disprove cause for dismissal,” and the ALJ could not award damages. (Id. at p. 854.) The Education Code, by limiting the arbitrator to the cause question and denying any damages power, “expresses a legislative intent not to abrogate a community college employee’s common law remedies,” which meant Wassmann “could have pursued” the tort claim simultaneously and had no excuse for the delay. (Ibid.)

Significance

Wassmann is a textbook appellate application of the continuing-violation framework that Richards v. CH2M Hill, Inc. installed as California law and that CACI No. 2508 now distills for juries. Its contribution is not a new rule but a crisp illustration of how the doctrine’s three elements operate — and, in particular, how the “degree of permanence” element interacts with a discrete termination. By holding that the employer’s alleged misconduct “‘acquired a degree of permanence’ in April 2011, when Wassmann’s employment was terminated,” the court reaffirmed the core insight of Richards: an employee may not indefinitely defer the limitations clock once the employer’s position has become firm and a reasonable person would understand that further conciliation is futile. (Wassmann, supra, 24 Cal.App.5th at p. 851.) Termination is the clearest possible permanence-triggering event. The opinion also models the two-step partition of FEHA damages claims: termination-based injuries fall under the preclusive shadow of any binding administrative cause finding, while non-termination injuries must be independently and timely charged with the DFEH. (Id. at pp. 849–851.) Equally instructive is the court’s rejection of a creative attempt to manufacture a continuing violation out of the employer’s litigation conduct — the post-termination acts were unpleaded and could not frame the summary-judgment issues, and the ALJ’s allegedly biased decision could not be imputed to the employer. (Id. at p. 851.) The holding’s limits should be marked: Wassmann does not hold that post-termination conduct can never extend a limitations period; it holds only that, on these allegations, the post-dismissal acts were neither similar in kind to the pre-dismissal conduct nor attributable to the employer, and that termination supplied the permanence that ended the continuum.

Key quotes

“Under the continuing violation doctrine, a plaintiff may recover for unlawful acts occurring outside the limitations period if they continued into that period. … The continuing violation doctrine requires proof that (1) the defendant’s actions inside and outside the limitations period are sufficiently similar in kind; (2) those actions occurred with sufficient frequency; and (3) those actions have not acquired a degree of permanence.” (Wassmann, supra, 24 Cal.App.5th at pp. 850–851.)

“The continuing violation doctrine does not help Wassmann. The alleged acts of discrimination and harassment occurring outside the limitations period (before Dec. 2011) and inside the limitation periods (after Dec. 2011) are not at all similar. The District Defendants’ alleged acts of discrimination and harassment ‘acquired a degree of permanence’ in April 2011, when Wassmann’s employment was terminated.” (Id. at p. 851.)

“Wassmann could not defeat summary judgment with evidence of events after April 2011 because the allegations of the second amended complaint framed the issues for the summary judgment motions. … The administrative law judge is not, however, an employee or agent of the District.” (Ibid.)

Read the full opinion (Justia) →

Practice pointer

Open questions

The opinion resolves the case before it without mapping the doctrine’s edges. Most notably, the court expressly declined to decide whether Wassmann in fact sought recovery for injuries distinct from her termination: “It is not clear whether Wassmann sought recovery for injuries other than loss of employment,” and “[t]he second amended complaint does not clarify whether the latter two forms of injury were solely derivative of, or were separate and distinct from, her loss of employment.” (Wassmann, supra, 24 Cal.App.5th at pp. 849–850.) The court avoided the question by holding any such separate claim independently time-barred — leaving open how the preclusion/exhaustion partition would operate in a case where the non-termination injuries are clearly pleaded and timely charged. The court also did not decide whether post-termination conduct attributable to the employer (as opposed to a neutral ALJ) could ever satisfy the similarity and permanence elements; its holding rests on the dual finding that the alleged acts were “not at all similar” and that the ALJ was not the District’s agent, so the harder case — genuinely similar, employer-attributable, post-termination harassment — remains for another day. (Id. at p. 851.) Finally, by anchoring permanence to the termination date, the opinion leaves unaddressed how the permanence element applies where the employment relationship continues but the employer’s posture has nonetheless hardened — the scenario Richards contemplated and that Wassmann, a clean termination case, had no occasion to refine. (Ibid.)