California Courts of Appeal

AVILES-RODRIGUEZ v. LOS ANGELES COMMUNITY COLLEGE DIST.

“This case calls upon us to decide an issue previously addressed, though not definitively decided, by our Supreme Court. In Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479 (Romano), the court held that under the Fair Employment and Housing Act (FEHA), Government Code sections 12900 et seq., a party alleging that a discriminatory act led to the termination of his or her employment has until one year from the date the employment terminated to file an administrative claim. Romano involved an at-will employee; the instant case involves a professor denied tenure. These factual distinctions arguably are of legal significance. Nevertheless, based on our Supreme Court’s criticism of a United States Supreme Court case involving a denial of tenure and its disapproval of a California case deemed analogous to a denial of tenure, we interpret the court’s reasoning as a directive to apply the holding of Romano to the instant case.

Appellant Guillermo Aviles-Rodriguez previously was employed by respondent Los Angeles Community College District (LACCD) as a professor. On November 21, 2013, a tenure review committee voted to deny appellant tenure. Following a February 26, 2014 review and final vote by the Board of Trustees, appellant received written notice on March 5 that tenure had been denied. Before receiving notice of the Board’s final decision, appellant initiated a grievance procedure, the third and final step of which was denied by a grievance review committee on May 21, 2014. That same month appellant allegedly contacted the Department of Fair Employment and Housing (DFEH) to discuss the filing of a claim alleging racial discrimination including, but not limited to, the denial of tenure, and was advised that he had until one year from the last day of his employment to file a complaint with the DFEH. Appellant’s employment terminated June 30, 2014, the last day of the academic year, and on June 29, 2015, he filed his complaint with DFEH. After being issued a right-to-sue letter, appellant filed the instant action against LACCD. Following several demurrers, appellant filed his third amended complaint (TAC), the operative complaint. The TAC alleged a single cause of action under the FEHA against LACCD for denial of tenure and termination based on racial discrimination.

LACCD demurred to the TAC, arguing that appellant’s claim was barred because he failed to file his DFEH complaint within one year “from the date upon which the alleged unlawful practice … occurred.” (§ 12960, subd. (d).) It asserted the trigger date for the commencement of the one-year period was the date tenure was denied. Relying on Romano, appellant argued he had one year from the last day of his employment to file the DFEH complaint. The trial court sustained the demurrer without leave to amend and ordered the case dismissed.

Were we writing on a blank slate, we might conclude that the one-year limitations period to file a DFEH complaint begins to run on the date the employee is notified of the final tenure decision. However, although Romano did not involve a wrongful termination resulting from the denial of tenure, we read its discussion of both federal and state cases involving the denial of tenure or analogous facts as a clear directive that its holding

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CELA Salutes Outgoing Bulletin Editor Joan Herrington

Joan Herrington, Esq.

Please join the CELA Board in thanking Joan Herrington for her service to CELA as our Bulletin Editor. Since early 2015, Joan has provided thoughtful and well-researched reports of verdicts and settlements, and summaries of every significant newly published case on California employment law. Her editorial stewardship has ensured that each monthly edition arrived full of information relied on by CELA members and almost 200 judges and justices around the state. As a leader within CELA, Joan successfully recruited other talented contributors to write valuable practice guides that have appeared in almost every edition.

When CELA advertised to hire a new Bulletin editor after the untimely passing of Chris Bello in 2015, we were grateful that Joan stepped forward to take the helm. In addition to her writing and editorial duties, Joan was instrumental during her tenure as Editor in helping to redesign the Bulletin, bringing it from its paper past to the electronic version we have today. For all of this, we express our gratitude and respect.

Please take a moment to thank Joan for her contribution to CELA and for taking on the monumental task of keeping us all oriented and up-to-date as we traverse the ever-shifting landscape of employment law.

Beginning with the next edition, Craig Byrnes is adding the position of Editor to his portfolio of volunteer activities as a member of CELA’s Board. As Joan and Chris before him have done, we look forward to seeing the mark Craig will make as Editor.

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CELA’s 30^th Annual Conference is just a month away!  In honor of our special milestone, CELA’s nonprofit sister organization, Foundation for Advocacy Inclusion & Resources is throwing CELA a birthday party at the Oakland Marriott on Friday, October 20.  In turn, CELA is thrilled that profits from this event will benefit FAIR as it works to ensure that the attorneys advocating for California’s workers are as diverse as those they seek to represent and as it works to raise public consciousness about worker’s rights.  Our hope is that this will be an epic party for a great cause, full of the CELA vibe and a time to recognize all that we have accomplished over the past 30 years. Remember to buy your tickets through the conference registration page on CELA’s website.

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