Opinion
2d Civil No. B154971.
10-30-2003
WILLIAM C. MOSES, Plaintiff and Appellant, v. H. R. TEXTRON, INC., et al., Defendants and Respondents.
Benedon & Serlin, Gerald M. Serlin, Douglas G. Benedon; Shegerian & Associates and Carney R. Shegerian for Plaintiff and Appellant. Proskauer Rose LLP, Arthur F. Silbergeld and Harold M. Brody for Defendants and Respondents.
Rather than accept a demotion by respondent, H.R. Textron, Inc., as of August 16, 1999, William Moses retired, effective September 20, 1999. On August 19, 1999, he filed a charge of constructive discharge and received a right to sue letter from the Department of Fair Employment and Housing (DFEH). Both the DFEH charge and the lawsuit alleged that his discharge had occurred on August 6, 1999. On September 19, 1999, Moses filed his first lawsuit alleging constructive discharge due to age discrimination. (Moses I.) After a defense verdict in that case on November 7, 2000, Moses obtained another right to sue letter and filed the instant action for wrongful demotion on December 13, 2000, attaching the original DFEH charge. Textron successfully moved for summary judgment based on the statute of limitations. (Gov. Code § 12960.) Moses appeals from the summary judgment granted respondents, H.R. Textron, Inc., and its parent company, Textron, Inc. (collectively, Textron). He contends there are triable issues of fact regarding these causes of action. We affirm.
FACTS
Moses began working for Textron in 1960 and eventually became Director of Facilities and Maintenance. On August 6, 1999, six weeks before he was eligible to retire with full benefits, Patricia Archer, Textrons Human Resources Director, informed him that his employment would be terminated unless he discharged "a subordinate employee, who was more than 40 years old." Archer told Moses he would be expected to handle all the functions of the terminated employee in addition to his own. Archer also told him that his position as director was being eliminated and that he would be offered the position of maintenance manager at the same pay. Moses was given 10 days to consider the proposal.
At the time, his salary was in the midrange for his position as director. Although he believed his pay would not be cut if he accepted the proposal, he knew that the position of manager had a much lower salary range and he would not be eligible for any increases in pay. He, like Textron, viewed the offer as a demotion. Moses cleaned out his office during the 10-day period. On August 16, 1999, he refused the offer, told Archer he would resign, and handed her his master keys to the plant, along with a company credit card, his pager, and some petty cash.
Archer suggested that instead of resigning, he take his six weeks of accrued vacation so he could obtain a regular retirement at age 65. Moses withdrew his resignation and provided a written statement accepting Archers suggestion.
On August 19, 1999, Moses filed an administrative complaint with the DFEH charging that on August 6, 1999, he was constructively discharged on the basis of age discrimination. (See Gov. Code, § 12960 et seq.) DFEH immediately provided a right to sue letter. On September 14, 1999, Moses filed Moses I, alleging that he was constructively discharged due to age discrimination on August 6, 1999. On September 29, 1999, Moses filed a DFEH charge naming the parent company, too.
On October 13, 2000, Textron produced an internal e-mail dated July 22, 1999, apparently from Archer to the vice president of human resources at Textron headquarters, that said Moses "will be offered a lesser position" and that "[h]is salary will be reduced from $103,482 to $83,354, which is the top of the range for the lower grade." The e-mail also explained that "we feel he will either turn down the demotion, or accept it for now, and retire at the end of September."
Moses I went to trial. On November 7, 2000, a jury found that Textron did not constructively discharge Moses or violate its implied covenant not to terminate him without good cause. Before the matter was submitted to the jury, the court dismissed the parent company. Judgment was filed on December 12, 2000.
On November 16, 2000, Moses filed a new charge with DFEH stating that on September 19, 1999, he had been demoted due to age discrimination. He immediately received another right to sue letter from DFEH. On December 13, 2000, Moses filed his first complaint in the instant action, alleging he was wrongfully demoted on August 6, 1999, due to age discrimination, and that Textron breached the covenant not to demote him without good cause. On March 13, 2001, Moses filed a first amended complaint alleging that the demotion occurred on September 20, 1999, although he "stopped physically appearing at defendants worksite on August 16, 1999." Moses attached the DFEH charges in which he states that August 6, 1999, was the most recent date that the discrimination took place.
Textron moved for summary judgment, asserting that this suit for wrongful demotion is barred by the statute of limitations and that the cause for breach of the implied covenant not to demote without good cause is not actionable because Moses suffered no damages. The trial court granted the motion, entered judgment, and this appeal ensued.
DISCUSSION
The purpose of summary judgment is to ascertain whether trial is necessary to resolve the dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) On appeal, we independently review motions for summary judgment by considering all the admissible evidence properly presented, and reasonable inferences therefrom, in the light most favorable to the party opposing the motion. (Id., at pp. 843, 856.)
"[A]ll that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action . . . ." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn. omitted.) Once the defendants have met their burden by producing evidence showing that the plaintiff cannot establish one or more elements of the cause of action or that there is a complete defense to the cause, the burden shifts to the plaintiff to produce specific, admissible evidence showing that a triable issue of material fact exists. (Id., at pp. 849, 850, 853, 855; Code Civ. Proc., §437c, subd. (p)(2).) If the plaintiff does not counter defendants showing with such evidence, summary judgment must be granted. (Aguilar, pp. 855, 857; College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 719.)
Statute of Limitations
Under the Fair Employment and Housing Act (FEHA), it is an unlawful employment practice for an employer to discharge or demote an employee because of age. (Gov. Code, §§ 12940, 12941; Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.) "The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA." (Romano, p. 492.) Generally, "[n]o complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice . . . occurred, except that this period may be extended as follows: [¶] (1) For a period of time not to exceed 90 days following the expiration of that year, if a person allegedly aggrieved . . . first obtained knowledge of the facts of the alleged unlawful practice after the expiration of one year from the date of their occurrence." (Gov. Code, § 12960, subd. (d)(1); Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 811-812.)
This one-year statute of limitations for filing FEHA actions is liberally construed to permit resolution of potentially meritorious claims on the merits. This policy promotes FEHAs purpose of safeguarding the right of employees to work without experiencing discrimination. (Richards v. CH2M Hill, Inc., supra, 26 Cal.4th at p. 819; Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th at pp. 493-494.)
Archer notified Moses on August 6, 1999, that he would be terminated in 10 days unless he discharged another employee and performed both that employees functions and his own under the position of manager. On August 16, 1999, Moses refused the offer, saying he would resign. He handed Archer his master keys, the company credit card, his pager and petty cash. Although he retracted his resignation and accepted retirement, effective September 20, 1999, he filed his constructive discharge complaint with DFEH on August 19, 1999. It is undisputed that he did not file the instant claim with DFEH until November 16, 2000, and that he did not file the instant lawsuit until December 13, 2000, well beyond the statute of limitations period.
Nonetheless, Moses contends that his claim for wrongful demotion is not time barred because he is entitled to the 90-day grace period contained in Government Code section 12960. He also argues that the November 2000 DFEH charge relates back to his earlier charge of constructive discharge, and that Textron should be equitably estopped to challenge the timeliness of this demotion claim. We consider these arguments.
90-Day Grace Period
Moses contends that the 90-day grace period of Government Code section 12960 applies because the demotion would not have been effective until September 20, 1999, the manager position did not appear to entail a decrease in pay or benefits, and he did not know his pay and benefits would be reduced until October 13, 2000, when his attorney obtained the e-mail in which Archer apparently stated that Textron intended to demote him as of August 1999.
The one-year period begins to run after the unlawful practice has actually occurred, not from the date of notification of its impending implementation. (Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th at pp. 493, 495, 501.) Thus, the notification on August 6, 1999, that his position would be eliminated if he did not accept the conditions outlined by Archer, did not necessarily set the time for the limitations period to run. But, by his own admission, August 6, 1999, was the latest date that Textron engaged in discriminatory action against him. In addition, Moses took preemptive action by refusing to accept the position of manager, resigning, and then submitting retirement papers on August 16, 1999. His admissions and actions set the time running on the limitations period from no later than August 16, 1999.
He filed his charge of constructive discharge with DFEH on August 19, 1999, and he filed Moses I with the court on September 14, 1999. During the trial of Moses I, Moses testified that as of August 16, 1999, when he discussed the situation with Archer, he understood that one of his options was "to take her proposal to take a downgrade and do both jobs." (Italics added.) When Archer was deposed on January 24, 2000, counsel questioned her about the e-mail of July 22, 1999, which discussed the impending demotion of Moses. Counsel quoted salient parts of the e-mail, which states "Bill Moses, currently director facilities [sic] will be offered a lesser position, maintenance manager. His salary will be reduced from $103,482 to $83,354 which is a top of the range for the lower grade." (Italics added.) Counsel quoted further from the e-mail, indicating that "we [Textron] feel he will either turn down the demotion or accept it for now and retire at the end of September." (Italics added.) Archer also testified in her deposition that Moses was being demoted. According to his instant complaint, Moses was wrongfully demoted on August 6, 1999.
By his own admission at trial, Moses understood he was being demoted in August 1999, and Archers deposition in January 2000 confirmed his understanding. Nonetheless, Moses waited until November 16, 2000, after the jury rendered its verdict in Moses I, to file the instant complaint with DFEH. And, although he obtained a right to sue letter immediately from DFEH, he waited until December 13, 2000, to file the instant lawsuit. The body of the new action alleged that the demotion took place on August 6, 1999. In addition, he attached the initial FEHA charge to the instant complaint, which also states that the latest date of discrimination was August 6, 1999. He is bound by these prior allegations. (Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946 [allegations of complaint yield to contrary allegations of exhibits to complaints].) These admissions preclude application of the 90-day grace period contained in Government Code section 12960 because they establish he knew he was being demoted long before the expiration of the statute of limitations period.
Moses contends that under FEHA, one may not sue based on a demotion unless one is subjected both to a reassignment of work responsibilities and a decrease in wages and benefits provided. We disagree. In Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, the Supreme Court explained that "[a] tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." (Pp. 761, 762-763, italics added; and see id., at pp. 764-765, 766 [court held companies are vicariously liable for tangible employment actions of supervisors which create a hostile work environment].) Liability may attach to any one of such tangible employment actions. (Id., at pp. 761-763.) "No affirmative defense is available . . . when the supervisors harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment." (Id., at p. 765, italics added; see generally Prescod v. Unemployment Ins. Appeals Bd. (1976) 57 Cal.App.3d 29, 37 [reduction in grade without same promotional opportunities is demotion for purposes of unemployment benefits even if no reduction in salary involved]; see also Reed v. City Council of City of Roseville (1943) 60 Cal.App.2d 628, 635 [reduction in rank or grade of civil service employee is demotion even if salary may remain the same].)
In this case, it is uncontroverted that Moses retirement, effective September 20, 1999, was directly precipitated by Textrons undesirable reassignment of Moses. The reassignment of Moses to the lesser position of manager included additional responsibilities and would have become effective as of mid-August 1999. Aside from his admission on the DFEH complaints attached to his lawsuit, Moses admitted at trial that as of August 6, 1999, he knew he was being demoted. During Archers deposition of January 2000, counsel quoted the e-mail stating that Textron was demoting him in August 1999. Nonetheless, Moses did not immediately file another DFEH complaint or amend Moses I to allege wrongful demotion. Instead, he waited until December 13, 2000, a date beyond the one-year statute of limitations, to file the instant lawsuit. (Gov. Code, § 12960.) In his amended complaint, he improperly alleged that the demotion occurred on September 20, 1999. Moses is bound by his prior averments and the DFEH charge attached to the complaint, both of which state that the demotion occurred in August 1999. (Continental Ins. Co. v. Lexington Ins. Co. (1997) 55 Cal.App.4th 637, 646; Vallejo Development Co. v. Beck Development Co., supra, 24 Cal.App.4th at p. 946.)
Nor may Moses seek the benefit of the grace period provided in Government Code section 12960. That grace period applies only to those who first learn about the facts of the alleged unlawful practice more than a year after they occur. (Id., at subd. (d)(1); Richards v. CH2M Hill, Inc., supra, 26 Cal.4th at pp. 811-812.)
Relation Back
Alternatively, Moses argues that his November 2000 DFEH charge for wrongful demotion relates back to his August 1999 charge for constructive discharge. "[T]he relation-back doctrine is available in appropriate circumstances to render timely an otherwise untimely amendment to a charge under FEHA." (Rodriguez v. Airborne Express (9th Cir. 2001) 265 F.3d 890, 898; and see Casavantes v. California State University, Sacramento (9th Cir. 1984) 732 F.2d 1441, 1443.) Untimely amendments may relate back if they are based on the same general facts. (Dept. Fair Empl. & Hous. v. County of Alameda, Sheriffs Department (July 2, 1981) No. 81-13, FEHC Precedential Decs. ________, CEB ____, p. ____ [1981 WL 30856, p. 8]; Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 583.) But, the November 2000 DFEH charge and the instant lawsuit are not amendments to the original DFEH charge and Moses I. They contain new, distinct allegations of demotion filed after Moses I had been determined by the jurys verdict.
Because he knew he was being demoted in August 1999, Moses could have checked the box to allege demotion on the 1999 DFEH charge, and his first complaint in Moses I could have included a cause of action for wrongful demotion. He could have amended Moses I shortly after Archers deposition in January 2000, in which counsel quoted the Textron e-mail stating he was being demoted in August 1999. But, he did not do so. He waited until after the verdict was rendered in November 2000 to file a new DFEH charge and the instant complaint alleging he was demoted. There was no action pending when he filed the instant lawsuit. Accordingly, the new charges do not relate back to the previous complaint.
Equitable Estoppel
Lastly, Moses contends that Textron should be equitably estopped to rely on the statute of limitations because it misrepresented that his salary and benefits would not be reduced and did not comply timely with discovery requests. We disagree.
In Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 92, the Court of Appeal declined to adopt a rule invoking its equitable powers to revive a late DFEH claim "because the statute in question, [Government Code] section 12960, already addresses that issue" by including a 90-day grace period. "Since the Legislature has provided a remedy for the problem . . . we decline to formulate a different remedy." (Id., at p. 93.) We agree with Williams.
Where, as here, the uncontroverted facts establish that the instant suit was not filed within the statute of limitations period, summary judgment is proper. (Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th at p. 487, quoting Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.)
Implied Covenant Not to Demote Without Good Cause
Moses contends that the trial court improperly granted summary adjudication on the cause of action for breach of the implied covenant not to demote him without good cause because the motion was unsupported by declarations or other evidentiary materials. He argues that the motion constituted one for judgment on the pleadings, similar to the demurrer which the court had overruled, and that no material change in law applied. (Code Civ. Proc., § 438, subd. (g)(1).) Moses also argues that the court wrongly found no damages supported the cause of action for breach of the implied covenant. He asserts he is entitled to damages for anticipatory breach of contract because Textron repudiated its employment contract with him. We disagree with these contentions.
The only damages recoverable for breach of the implied contract not to be demoted without good cause is the difference between ones former salary and benefits and those one receives in the lesser position. (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 468, disapproved on other grounds in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 352, fn. 17.) Textron provided uncontroverted evidence establishing that Moses did not attempt to perform the proffered position of manager. Instead, Moses elected to retire. Thus, the alleged demotion, wrongful or otherwise, never occurred and no damages were recoverable.
The summary judgment is affirmed. Costs are awarded to respondents.
We concur: GILBERT, P.J. and COFFEE, J.