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Date: 04-09-2020

Case Style:

Bonnie Ducksworth v. Tri-Modal Distribution Services

Case Number: B294872

Judge: Wiley, J.

Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Kevin A. Lipeles, Thomas H. Schelly, and Julian Bellenghi

Defendant's Attorney: Daniel K. Gaston, Gloria G. Medel, Jack E. Jimenez, Lann G. McIntyre and Tracy D. Forbath

Description:

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Bonnie Ducksworth and Pamela Pollock are customer service
representatives at Tri-Modal Distribution Services. Tri-Modal promoted
others but, for decades, never promoted them. Ducksworth and Pollock
believed this was due to discrimination against African-Americans. They
sued.
In addition to her discrimination claim, Pollock also sued about sexual
harassment. Tri-Modal’s executive vice president Mike Kelso began “a dating
relationship” with Pollock. Pollock refused Kelso’s request to make the
relationship more sexual. Pollock ultimately ended the relationship. After
she dumped him, Kelso blocked her promotions at Tri-Modal, Pollock alleged.
These contentions implicated employer Tri-Modal, but it is not involved
in this appeal. Rather three different defendants are our sole concern, as
follows.
Two of these other defendants are two staffing agencies called Scotts
Labor Leasing Company, Inc., and Pacific Leasing, Inc. Scotts and Pacific
supplied employees, including Ducksworth and Pollock, to Tri-Modal. The
trial court granted summary judgment for Scotts and Pacific because they
were uninvolved in Tri-Modal’s decisionmaking about whom to promote. We
affirm this ruling for the staffing agencies.
The third defendant is Kelso. The trial court granted a separate
summary judgment for Kelso because the statute of limitations barred
Pollock’s claim against him. Pollock appeals this ruling on two grounds.
First, she says the court erred at summary judgment in overruling her
hearsay objection to a key part of Kelso’s evidence. Second, she argues the
court miscalculated the statute of limitations by running the clock from the
date the employer offered a competitor the promotion and the competitor
accepted the promotion rather than the later date when the competitor began
working at the new position. We affirm this summary judgment ruling for
Kelso.
I
Five of the key actors are Ducksworth, Pollock, Tri-Modal, Scotts, and
Pacific. (The appellate briefs and record do not spell Pollock’s name
consistently. We use the spelling that is more common in the papers.)
3
In the first cause of action, Ducksworth and Pollock sued Scotts,
Pacific, and Tri-Modal for racial discrimination under subdivision (a) of
Government Code section 12940, which is part of California’s Fair
Employment and Housing Act. Some call this statute FEHA. We refer to it
as the Act.
Ducksworth’s and Pollock’s theory was racial discrimination explained
why they have never been promoted.
What is Tri-Modal? It describes itself as a transportation logistics,
warehousing, and distribution services company, while Ducksworth and
Pollock call it simply a trucking company. Gregory Owen owns Tri-Modal.
Kelso has been its executive vice president since 2009.
Scotts and Pacific are companies engaged in what the parties call
“labor leasing.” These two companies provide Tri-Modal, and only Tri-Modal,
with staffing and administrative services for leased employees, including
Ducksworth and Pollock.
The parties do not use the same terminology to refer to Scotts and
Pacific. These companies describe themselves as “professional employer
organizations i.e. employment leasing/staffing companies.” Ducksworth and
Pollock disputed this description and instead, in their pleading, called them
“staffing agencies.” No party explains to us what difference labeling might
make, so we use the shorter “staffing agencies.” (Cf. Jimenez v. U.S.
Continental Marketing, Inc. (2019) 41 Cal.App.5th 189, 192, fn. 2
[nomenclature about temporary staffing entities varies in case law].)
Ducksworth applied through Scotts for an open position with Tri-Modal
in 1996. Scotts hired her that year and leased her to Tri-Modal from 1996 to
2006.
Similarly, the following year, in 1997, Pollock applied for a position
with Tri-Modal through Scotts. Scotts hired her and leased her to Tri-Modal
from 1997 to 2006.
Both Ducksworth and Pollock worked continuously at Tri-Modal from
their start dates through the time of summary judgment, which was in late
2018. In 2006, however, after a two-week interlude by a third staffing
company not involved here, Pacific took over the role Scotts formerly
4
performed regarding Ducksworth and Pollock. Pacific provides the same
services to Tri-Modal as did Scotts.
For Ducksworth and Pollock and similar employees leased to TriModal, Scotts and Pacific tracked and processed payroll, health insurance,
workers compensation, vacation, holiday, sick pay, tax, and social security
payments. The name on these employees’ paychecks was either Scotts or
Pacific.
Tom Scott formed Scotts in 1996 when he closed down another
company called Marine Glass Company, was unemployed, and then spoke
with Greg Owen, whom Scott knew. Scott formed Pacific in 1997.
Scotts and Pacific provide their services only to Tri-Modal and not for
any other company. Tom and Sheri (or Cheri—we thus refer to her as Ms.
Scott) Scott are married and are the sole owners of Scotts and Pacific. Ms.
Scott works at Tri-Modal one and a half to two hours a week. Her work is to
pay truck drivers.
At the time of Tom Scott’s deposition, 44 people worked at Scotts and
nine worked at Pacific. All were leased to Tri-Modal. Up to and ending in
2006, Scotts leased Ducksworth and Pollock to Tri-Modal. At the time of
Scott’s deposition, it was Pacific that leased Pollock and Ducksworth to TriModal. Tom Scott considered both Pollock and Ducksworth to be employees
of Pacific because “our name is on their paycheck.” In addition to these
people, Tom Scott himself (but not Ms. Scott) is an employee of Scotts.
Tom Scott testified that he is not employed by Tri-Modal, but that
Scotts leases him, Tom Scott, to Tri-Modal, where he has been compliance
safety director continuously since 1998. This compliance safety work involves
running background checks on drivers, orienting and training drivers,
maintaining their qualification files, and such. Tom Scott supervises no one.
Tom Scott’s paycheck comes from Scotts Labor Leasing.
Tom Scott, Scotts, and Pacific were not involved with the day-to-day
supervision of Ducksworth and Pollock at Tri-Modal. Tom Scott knew
Pollock “is a clerk of some type” at Tri-Modal, and he knew Ducksworth is “in
the customer service department” there. But Tri-Modal rather than Scotts or
Pacific set work schedules for Ducksworth and Pollock. Pollock would go to
5
Tri-Modal, not Scotts or Pacific, for work assignments or if she were running
late or asking for a day off.
The decision to give a raise to any employee leased by Scotts or Pacific
to Tri-Modal was made solely by Tri-Modal, with no input from Scotts or
Pacific.
Ducksworth and Pollock rarely interacted with Scotts and Pacific.
Pollock did not interact with Tom Scott on a daily basis and did not see him
on a monthly or weekly basis. Ducksworth would not see Tom Scott during
the course of a week, except perhaps to say “hi” if they did happen to see each
other. If Pollock had any interaction with Tom Scott, it would be about
insurance or benefits.
Pollock never went to Scotts about a work related complaint, but
instead would take it to Tri-Modal. Pollock never discussed raises or
promotions with Tom Scott. Similarly, Ducksworth never went to Scotts to
request a raise or promotion. Scotts had no input about raises or promotions
at Tri-Modal.
Tom Scott never disciplined Pollock or Ducksworth during their
employment. Scotts never supervised or trained Pollock or Ducksworth.
Scotts and Pacific moved for summary judgment.
The following quotation is from Fact 16 in the separate statement for
this summary judgment motion.
“The decision to promote an employee leased to by [sic] Scotts or Pacific
to Tri-Modal is made solely by Tri-Modal. Scotts or Pacific do not provide any
input, have any authority or make any decision regarding the promotion of
any employees leased to Tri-Modal.”
Ducksworth and Pollock told the trial court they did not dispute Fact
16.
On December 6, 2018, the trial court found the undisputed Fact 16
entitled the staffing agencies to summary judgment.
We now recount some facts about Pollock and Kelso in particular.
Kelso began dating Pollock in 2014. The relationship involved
passionate kissing. Kelso wanted sexual intercourse but Pollock did not,
according to Pollock. Pollock ended the relationship in 2016. In the second
cause of action, Pollock and not Ducksworth sued Kelso and Tri-Modal for
6
quid pro quo sexual harassment in violation of subdivisions (j)(1) and (j)(3) of
Government Code section 12940, which is part of the Act.
On November 20, 2018, the trial court granted summary judgment for
Kelso based on the statute of limitations.
Ducksworth and Pollock appealed the summary judgments in favor of
Scotts, Pacific, and Kelso.
II
In this section, we review the summary judgment in favor of the
staffing agencies. The trial court ruled undisputed Fact 16 exonerated the
staffing agencies according to the governing precedent of Bradley v. Dept. of
Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1628–1629
(Bradley). The trial court was right. Scotts and Pacific basically were
innocent bystanders in this case of alleged discrimination by Tri-Modal. We
affirm because Scotts and Pacific were not involved with the promotions
Ducksworth and Pollock attack. A company that has not discriminated
cannot be liable for discrimination.
As the trial court ruled, Bradley is the leading precedent on the
pertinent issue. (See Patterson v. Domino's Pizza, LLC (2014) 60 Cal.4th 474,
499 [Supreme Court majority cites Bradley]; id. at pp. 504 & 507 [Supreme
Court dissent also cites Bradley]; Martinez v. Combs (2010) 49 Cal.4th 35, 50,
fn. 16 [citing Bradley]; State ex rel. Dept. of California Highway Patrol v.
Superior Court (2015) 60 Cal.4th 1002, 1008, fn. 2 [citing Bradley].)
Bradley held an employee can sue its “contracting employer,” like TriModal in this case, without suing the employee’s “staffing agency.” (Bradley,
supra, 158 Cal.App.4th at p. 1629.) In Bradley, a worker named Sallie Mae
Bradley at a state prison brought sexual harassment and retaliation claims
against the California Department of Corrections and Rehabilitation—the
“department”—under Government Code section 12940. (Id. at p. 1617.)
Bradley proved a prison chaplain sexually harassed her, and then the prison
fired her when she complained. (Id. at pp. 1618–1623.)
Bradley had a contract with a staffing agency, which in turn had a
contract with the department for Bradley to work at the prison. (Bradley,
supra, 58 Cal.App.4th at p. 1618.) We use the term “staffing agency” while
the court in Bradley used the label “temporary service agency” to describe the
7
entity tracking Bradley’s hours and issuing her paychecks. (Id. at p. 1624.)
Bradley sued the department and not the staffing agency. (Id. at pp. 1617–
1618.)
The Bradley decision discussed a California state regulation issued by
the Fair Employment and Housing Commission, which is the agency charged
with interpreting Government Code section 12940. (Bradley, supra, 158
Cal.App.4th at p. 1629.)
This regulation specifies “[a]n individual compensated by a temporary
service agency for work to be performed for an employer contracting with the
temporary service agency is an employee of that employer for such terms,
conditions and privileges of employment under the control of that employer.
Such an individual also is an employee of the temporary service agency with
regard to such terms, conditions and privileges of employment under the
control of the temporary service agency.” (Cal. Code Regs., tit. 2, § 11008,
subd. (c)(5), italics added [definition previously in Cal. Code Regs., tit. 2, §
7286.5, subd. (b)(5)].)
The Bradley decision rejected the department’s argument that, under
this governing regulation, the staffing agency had to be liable for the prison
chaplain’s misconduct. (Bradley, supra, 158 Cal.App.4th at pp. 1628–1629.)
The staffing agency was not an indispensable party to Bradley’s suit because
there were no allegations in the complaint and no evidence to suggest
liability rested on terms, conditions, or privileges of employment under the
control of the staffing agency. To the contrary, all allegations related to
matters under the department’s control. (Id. at p. 1629.)
In short, Bradley held the staffing company was not liable for
harassment with which it was entirely uninvolved. (Cf. Mathieu v. Norrell
Corp. (2004) 115 Cal.App.4th 1174, 1180, 1182–1184 [a temporary
employment agency can be liable for harassment at a client’s workplace if
employee is required to, and does, report problems at the client’s workplace to
the agency].)
The trial court here properly applied the regulation and reasoning in
Bradley to Scotts and Pacific. Undisputed Fact 16 conclusively established
Scotts and Pacific did “not provide any input, have any authority or make any
decision regarding the promotion of any employees leased to Tri-Modal.”
8
Under Bradley, Scotts and Pacific were not involved and are not liable and
thus are out of the suit.
The Bradley decision makes good sense to us. Ducksworth and Pollock
do not criticize it as wrongly decided.
Rather Ducksworth and Pollock make a passing effort to distinguish
Bradley, but their opening brief confines their effort to a short paragraph.
This paragraph asserts their case differs from Bradley “in two respects.”
Neither proposed distinction has force.
Ducksworth’s and Pollock’s first proposed distinction fails. It consists
of one sentence, which is their complaint “attributes liability” to the staffing
company. Evidence, however, eclipses mere pleading allegations, and here,
according to Fact 16, undisputedly “[t]he decision to promote an employee
leased to by [sic] Scotts or Pacific to Tri-Modal is made solely by Tri-Modal.
Scotts or Pacific do not provide any input, have any authority or make any
decision regarding the promotion of any employees leased to Tri-Modal.”
This undisputed fact overwhelms and refutes the allegations in their
complaint. This first attempt to distinguish Bradley is unsuccessful.
Ducksworth’s and Pollock’s second proposed distinction builds on two
other facts: the fact the staffing agencies’ employee handbook guaranteed
equal opportunity and freedom from harassment, and the fact the staffing
agencies’ president Tom Scott attended a meeting Tri-Modal called to address
Pollock’s allegations. Were it not for Fact 16, these two other facts might
create inferences about whether the staffing agencies had input, authority,
and decisionmaking power over promotions at Tri-Modal. But Fact 16 settled
the issue because Ducksworth and Pollock agreed Fact 16 was undisputed.
That agreement trumped contrary inferences.
Fact 16 is paramount and conclusive in this case. The point of a
separate statement in the summary judgment process is to identify and to
isolate factual issues and thus to facilitate decisionmaking by trial judges.
The summary judgment process itself is highly desirable. The separate
statement is one of its core features. This process, vital to everyday life in
the trial courts, would break down entirely if parties were free to walk away
from or to adjust the separate statement once they discovered the court’s
legal analysis was not going their way.
9
Because Ducksworth and Pollock cannot distinguish Bradley, that
sound case validates the trial court’s decision regarding the staffing agencies.
The court correctly granted summary judgment for Scotts and Pacific because
they were not involved in the Tri-Modal decisions Ducksworth and Pollock
would condemn.
III
We now turn to Kelso, Tri-Modal’s executive vice president. He moved
for summary judgment because the statute of limitations barred Pollock’s
claims. The trial court correctly granted Kelso’s motion.
The claim against Kelso involved Pollock and not Ducksworth because
Kelso had a dating relationship only with Pollock. Ducksworth does not
figure in this aspect of the case.
Pollock’s theory in her second cause of action was Kelso began to date
her, but then wanted their relationship to be more sexual. Pollock did not
want that. Kelso also insulted her with remarks about “collard greens.”
Pollock ended the dating relationship, and then Kelso and thus Tri-Modal
punished Pollock by denying her promotions at Tri-Modal she deserved and
by instead promoting five other employees less qualified than Pollock.
The trial court’s analysis of the statute of limitation issue was as
follows. Pollock filed her sexual harassment complaint with the Department
of Fair Employment and Housing on April 18, 2018. So the one-year clock
began to run for Pollock on April 18, 2017. The court ruled, however, Kelso
established the events about which Pollock complained—the promotion of the
five others over her—either did not occur at all, or else occured before April
18, 2017. These facts, and particularly the precise dates of the various
promotions, were vital in the court’s analysis.
We return to the precision of these dates in just a moment, for they
play a prominent role in a hearsay issue we tackle.
Pollock objected to the source of these facts and dates. This source of
evidence was the “Mullaney declaration.” The court overruled Pollock’s
evidentiary objections to the Mullaney declaration.
On appeal, Pollock makes two arguments about the statute of
limitations: the trial court improperly overruled Pollock’s hearsay objection
to the Mullaney declaration, and the court miscalculated the statute of
10
limitations by selecting the wrong date on which to start the clock. Both
arguments err. We take up each in turn.
A
We start with Pollock’s hearsay argument. Pollock objected to the
Mullaney declaration, which Kelso offered to support his motion for summary
judgment. The trial court overruled the objection. This ruling was not an
abuse of discretion.
1
We add more facts for context.
Pollock’s theory in her second cause of action was, because of sexual
harassment, Kelso and Tri-Modal promoted five specific employees instead of
her. In response, Kelso offered evidence about whether and when Tri-Modal
did promote those five other employees. Kelso claimed, for one of these five
people, there was no promotion at all, and for the other four people, their
promotions were so long ago as to create a time bar blocking Pollock’s claim
against Kelso.
Kelso’s source for his factual assertions about these promotions was a
declaration from Tri-Modal’s vice president of operations, Timothy Mullaney.
The hearsay dispute is entirely about Mullaney’s declaration.
We summarize Mullaney’s declaration. As we do, bear in mind the key
limitations date is April 18, 2017: complaints about actions before that date
would be time-barred and would dictate victory for Kelso.
Mullaney began his declaration by swearing he had personal
knowledge of everything in the declaration. He then declared he had been
Tri-Modal’s vice president of operations since 2009. In that role, Mullaney
supported managers who were the ones making final hiring and promotion
decisions. He sometimes provided recommendations. And he “open[ed]
positions to be filled.” Mullaney did not specify what it meant to “open
positions.” Mullaney also had access to employee personnel files, and he had
reviewed some of those files.
Mullaney next stated specific facts and dates about the five promotions
Pollock challenged. The point of these specific facts and dates was to
establish the basis for Kelso’s two key defenses: (1) that Tri-Modal had not
11
promoted one of the five employees at all, and (2) that the promotions of the
other four triggered clocks barring Pollock’s harassment claim as tardy.
Mullaney declared Tri-Modal never promoted the first of these five
employees at all.
Mullaney then gave specifics about the promotion dates for the other
four employees.
According to Mullaney, Tri-Modal did not promote the second and third
employees into supervisory positions on or after July 19, 2016, and did not
promote the fourth employee on or after April 18, 2017. The company offered
the fifth employee—one Leticia Gonzalez, to whom we shall return—a
promotion in March 2017. Gonzalez’s promotion “t[oo]k effect” May 1, 2017.
(The difference between these two dates for Gonzalez—March 2017
versus May 1, 2017—created an issue we address shortly. Recall the
limitations date of April 18, 2017, which falls in between these dates and
which animates the issue to which we return below.)
In sum, Mullaney’s specific facts were essential for Kelso’s defense
about the statute of limitation. On the basis of these facts, Kelso maintained
Mullaney’s declaration showed Pollock’s suit was misguided and untimely.
In response, Pollock raised a hearsay objection to Mullaney’s
declaration. She said Mullaney’s testimony was hearsay because its source
was not Mullaney’s personal knowledge but rather came from his reading of
personnel files, which were out-of-court documents, were not in evidence, and
were nothing but hearsay.
The trial court overruled Pollock’s hearsay objection. On appeal,
Pollock renews this objection.
2
We must determine the standard of review for this hearsay issue.
There is controversy here.
In Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 (Reid), the Supreme
Court approved of independent review when the trial court entirely failed to
rule on evidentiary objections in connection with a summary judgment
motion. But what about when the trial court has made an evidentiary ruling,
as here? Reid declined to decide that question. (Ibid.)
12
The vast majority of courts of appeal since Reid have applied the abuse
of discretion standard in this situation. (See, e.g., Schmidt v. Citibank, N.A.
(2018) 28 Cal.App.5th 1109, 1118; Pacific Gas and Electric Co. v. Superior
Court (2018) 24 Cal.App.5th 1150, 1169; Duarte v. Pacific Specialty Ins. Co.
(2017) 13 Cal.App.5th 45, 52; O'Neal v. Stanislaus County Employees'
Retirement Assn. (2017) 8 Cal.App.5th 1184, 1198–1199; Ryder v. Lightstorm
Entertainment, Inc. (2016) 246 Cal.App.4th 1064, 1072; Jones v. Wachovia
Bank (2014) 230 Cal.App.4th 935, 951; Serri v. Santa Clara Univ. (2014) 226
Cal.App.4th 830, 852; Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal.App.4th
133, 143–144; Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th
173, 181; cf. Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th
1102, 1122–1123 (conc. opn. of Turner, P. J.) (Howard) [listing 13 decisions
and stating the “unanimous” decisions from 2006 to 2012 applied abuse of
discretion standard].)
Apparently two courts have disagreed. (See Pipitone v. Williams (2016)
244 Cal.App.4th 1437, 1450–1452 [interpreting “Reid’s practical effect” to
mandate independent review]; Alexander v. Scripps Memorial Hospital La
Jolla (2018) 23 Cal.App.5th 206, 226 [standard of review varies depending on
the type of evidentiary objection].)
We join with the vast majority and its embrace of abuse of discretion as
the proper standard. The weight of this massed authority is impressive.
The logic supporting this mass view also is impressive. Experienced
trial judges tend to agree, first, evidence law is surpassingly intricate and,
second, the need for dispatch is pressing. Moreover, a single summary
judgment motion can bring with it hundreds of written objections. (E.g.,
Cohen v. Kabbalah Centre Internat., Inc. (2019) 35 Cal.App.5th 13, 20 [197
written objections in one summary judgment motion].) In trial, too, a judge
may have to rule on dozens of objections per hour, hour after hour, day after
day, week after week. Each objection commonly contains within it many
different grounds: foundation, relevance, 352, hearsay, and so forth. Each
ground calls for a different evidentiary analysis. And lawyers can, and do,
make evidentiary objections entirely at will. Few and perhaps none of these
evidentiary objections may be of any ultimate importance. (See id. at pp. 20–
21.)
13
Because of the daunting complexity, volume, and pace of this
decisionmaking task, the latitude implied by the abuse-of-discretion standard
thus does make “great sense.” (Howard, supra, 208 Cal.App.4th at p. 1123
(conc. opn. of Turner, P. J.).)
We thus review the trial court’s hearsay ruling to see if the court
abused its discretion.
3
The court did not abuse its discretion by overruling Pollock’s hearsay
objection.
The hearsay question in this case was a close call. Mullaney recited a
series of promotion dates. He said certain employees were not promoted “on
or after” specific dates and said Gonzalez was promoted in March 2017. One
wonders: was Mullaney just reading and reciting those dates off documents
in personnel files? If so, that would be hearsay, unless the declaration
established some proper way around the hearsay rule, which it did not. (Cf.
Evid. Code § 1271 [reciting four foundational facts to establish the business
records exception].) Or was Mullaney reciting this series of dates from
personal knowledge, thus avoiding the hearsay problem?
Under an abuse of discretion standard, we could affirm whichever
ruling the trial court might make in this factual situation. The facts were in
equipoise. We illustrate.
It would have been reasonable for the court to conclude there was a
fatal hearsay problem, because paragraph nine of Mullaney’s declaration
stated “I have reviewed the personnel files” of the five employees.
Immediately after that, in paragraphs 10 through 18, Mullaney recounted
the crucial dates. This close sequence of assertions could support a
reasonable inference Mullaney merely read the dates from the files: “I looked
at the personnel files. The promotion dates were before X date or were in Y
month.” The immediacy with which sentence two follows sentence one is
context. That context could support the inference Mullaney knew the
promotions were before X date or were in Y month because he just read those
dates from the files. That recitation from documents would be merely
hearsay, unless there were a valid exception, which the declaration did not
establish.
14
But the opposite ruling also would have been reasonable. The trial
court fairly could have ruled as it did: to overrule Pollock’s hearsay objection
to Mullaney’s declaration. Mullaney did establish a plausible basis for his
own personal knowledge of these dates. Mullaney was at Tri-Modal the
whole time and was deeply involved in Tri-Modal’s personnel process. The
first paragraph of Mullaney’s declaration asserted he had “personal
knowledge of each of the facts set forth herein . . . .” The trial judge did not
abuse her discretion by accepting that statement at face value in this context.
Under the abuse of discretion standard, when more than one inference
reasonably can be deduced from the facts, we will not substitute our
deductions for those of the trial court. (In re Marriage of Rothrock (2008) 159
Cal.App.4th 223, 230.) The trial court’s admission of the Mullaney
declaration thus was not an abuse of discretion.
There is a lesson here for litigators: know your Evidence Code when
working with declarations. It was risky business to omit the foundation for
the business records exception in Mullaney’s declaration. Adding that
foundation probably would have taken little effort. Why walk so near the
cliff’s edge when the view is just as fine at a safer distance?
4
In sum, the trial court properly admitted the Mullaney declaration.
Kelso could use the declaration to support his motion for summary judgment.
B
We now address the second part of Pollock’s argument about the
statute of limitations. This argument requires a legal choice between two
dates. Tri-Modal gave Leticia Gonzalez a promotion in March 2017, but
Gonzalez did not start work in this new role until May 1, 2017. Which date
should trigger the clock: when Tri-Modal offered and Gonzalez accepted the
promotion, or when she started the new job? The interval in between
straddles the limitations start date, so the earlier date means victory for
Kelso, while the later date means victory here for Pollock.
The trial court used the earlier date, which was the date Gonzalez was
offered and accepted the position over Pollock. Pollock maintains the
limitations period began to run only later, when the other employee’s
promotion took effect. The trial court was right. Pollock’s claims were barred.
15
We independently review this question of law. (Sahadi v. Scheaffer
(2007) 155 Cal.App.4th 704, 713–714.)
By law, Kelso is right. The statute of limitations for a failure to
promote runs from when the employer tells employees they have been given
(or denied) a promotion. That date is key, and not the date when the
promoted worker actually starts the new work.
This result follows as a matter of statutory interpretation, so we turn
our gaze to the precise statutory language.
The governing statutes are sections 12940 and 12960 of the
Government Code. All statutory citations are to this code.
Subdivision (j)(1) of section 12940 makes it illegal for an employer to
“harass” employees on account of sex and gender. And, as pertains to
Pollock’s suit, former subdivision (d), now subdivision (e), of section 12960 set
a one-year clock for complaints about harassment. (The statute changed
effective January 1, 2020, but that change is not pertinent here.)
The governing statutory language used the key word “occurred”: “No
complaint may be filed after the expiration of one year from the date upon
which the alleged unlawful practice or refusal to cooperate occurred.” (Gov.
Code § 12960, former subd. (d), italics added.)
In this case, the alleged quid pro quo sexual harassment “occurred”
when Kelso supposedly punished Pollock at work for refusing his demand to
make their relationship more sexual.
Logically and thus textually, an employer injures the employee by
denying a deserved promotion as an instrument of sexual harassment. That
moment “occurred” when Tri-Modal allegedly did not promote the deserving
Pollock because of sexual harassment. That was in March 2017. So Pollock’s
injury “occurred” in March 2017, according to the plain meaning of the word
“occurred.”
This definition of “occurred” is simple and straightforward and thus
desirable and correct.
We can double-check this analysis with a hypothetical example.
Pollock’s allegation is Kelso offered the promotion to Gonzalez instead of
Pollock in retribution for Pollock’s refusal to submit to Kelso’s demand to
make their relationship more sexual. For purposes of analysis, suppose Kelso
16
had been candid about his allegedly harassing decision. In this hypothetical,
Kelso would tell Pollock, “Today I am giving this promotion to someone else,
even though you deserve it, because you rejected my sexual advances.” Such
a candid admission would describe grossly illegal discrimination that
“occurred” in March 2017, when Kelso denied Pollock a benefit she deserved
because Kelso wanted sex from her and she would not give it. So that date
triggered the one-year clock. That Kelso allegedly was less than candid
would not change anything fundamental about this analysis.
Pollock argues for a contrary conclusion based on her
misunderstanding of the Romano decision. (See Romano v. Rockwell
Internat., Inc. (1996) 14 Cal.4th 479 (Romano).)
Romano construed a different statutory word: “discharge.” Romano
held, essentially, that discharge occurs when you are off the payroll.
(Romano, supra, 14 Cal.4th at pp. 491–500.) That simple holding seems
obviously correct and is binding law but has nothing to do with this case,
which does not involve a discharge. Romano thus does not govern here.
The trial court correctly concluded that Government Code section
12960, former subdivision (d) bars Pollock’s claims because she did not file
her administrative complaint within one year of March 2017, the time that
those claims accrued. Summary judgment on this ground was proper.

Outcome: We affirm and award costs to Scotts, Pacific, and Kelso.

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