The California Court of Appeal recently reversed a verdict awarding the plaintiff $1 million in compensatory damages in Jumaane v. City of Los Angeles, 241 Cal. App. 4th 1390 (2015). Plaintiff, Jabari Jumaane, sued the City of Los Angeles for discrimination, retaliation, and harassment on the basis of race, which he experienced as a firefighter in the Los Angeles Fire Department. Plaintiff produced substantial evidence that he suffered retaliation and harassment in the late 1990s. Plaintiff was first suspended in 1999. He then filed a Department of Fair Employment and Housing (DFEH) complaint on April 16, 2002, alleging that his suspension was discriminatory, retaliatory, and harassing. The Fair Employment and Housing Act (FEHA) requires a plaintiff to file a complaint within one year of the unlawful conduct.
The City argued that the 1-year statute of limitations from the date of the suspension passed before the plaintiff filed his complaint. The City further argued that events occurring before April 16, 2001 (one year before the plaintiff filed his complaint), were not part of a continuing violation of FEHA. The continuing violation doctrine provides an exception to the statute of limitations, so long as the plaintiff can show that discriminatory conduct occurring outside of the statute of limitations period was part of a continuing violation.
At the trial court level, the jury returned a verdict of over $1 million for Jumaane, finding that the conduct in the 1990s was part of a continuing violation. Following trial, the court denied the City’s motion for judgement notwithstanding the verdict, which the City appealed.
The Court of Appeal held in Jumaane that the trial court erred with regard to the continuing violation doctrine. Specifically, to prove a continuing violation, the plaintiff must prove that the conduct occurring outside the limitations period (before 2001) was: (1) similar or related to conduct that occurred earlier; (2) reasonably frequent; and (3) had not yet become permanent. While the plaintiff satisfied the first two elements, “there [was] no evidence in the record from which we may infer that the harassment and retaliation occurring in the 1990s had not become permanent by the time plaintiff served his 1999 suspension.”
In other words, the statute of limitations begins to run either when the course of conduct is brought to an end or when the employee is on notice that further efforts to end the unlawful conduct will be in vain. Here, because the harassment and retaliation culminated in the 1999 suspension, and because the plaintiff knew that future efforts to make changes would be futile, all of the plaintiff’s claims related to conduct occurring before 1999 were barred by the statute of limitations. According to Bass v. Joliet Public School District No. 86, 746 F.3d 835, 839–40 (7th Cir. 2014), “reassignment of duties and suspensions are discrete acts in contrast to a continuing violation, for which Plaintiff must file a charge of discrimination within one year” (emphasis added). The Court found that the plaintiff lacked sufficient evidence to support a claim of racial discrimination, harassment, or retaliation within the statute of limitations period. Therefore, his claim failed.