Filed 8/29/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
GUILLERMO AVILES-RODRIGUEZ, B278863
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC599158)
v.
LOS ANGELES COMMUNITY
COLLEGE DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Barbara A. Miers, Judge. Reversed.
Knapp, Petersen & Clarke, André E. Jardini, Gwen
Freeman, and K.L. Myles for Plaintiff and Appellant.
Wood, Smith, Henning & Berman, Stacey F. Blank, and
Shannon M. Benbow for Defendant and Respondent.
___________________________________________
INTRODUCTION
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 section 12900 et
1
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
1
All further statutory citations are to the Government Code,
unless otherwise indicated.
2
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
should be applied here. In light of Romano, we conclude the one-
year limitations period for appellant to file a timely DFEH
3
complaint began to run from the last day of his employment. As
he filed his DFEH complaint within that period, his claim was
timely. Accordingly, we reverse the judgment dismissing the
TAC.
FACTUAL BACKGROUND & PROCEDURAL HISTORY
On October 27, 2015, appellant, an Hispanic man of
Mexican heritage, filed a complaint for damages alleging causes
of action against LACCD for (1) employment discrimination
(failure to grant tenure - race) in violation of the FEHA; (2)
employment discrimination (termination - race) in violation of the
FEHA; and (3) discrimination [in] violation of public policy.2 On
January 13, 2016, appellant filed a first amended complaint
(FAC) alleging a single cause of action for employment
discrimination (termination - race) in violation of the FEHA. In
the cause of action for wrongful termination, the FAC alleged
that “LACCD has engaged in endemic race based employment
discrimination, affecting Plaintiff, and resulting in his denial of
tenure.” It further alleged that “LACCD has engaged in endemic
race based employment discrimination, affecting Plaintiff, and
resulting in his termination from employment.”
LACCD demurred to the FAC on the ground that appellant
had failed to exhaust his administrative and judicial remedies.
After the trial court sustained the demurrer with leave to amend,
appellant filed a second amended complaint (SAC). LACCD
demurred to the SAC on the ground that the action was barred by
2
A cause of action for defamation-slander against an
individual defendant was later abandoned.
4
the applicable statute of limitations.3 It argued that because
appellant filed his DFEH complaint more than one year after
becoming aware of the decision to deny him tenure, his action
was barred under the one-year limitations period in section
4
12960, subdivision (d).
The trial court sustained the demurrer to the SAC with
leave to amend, after determining that the limitations period
began to run on November 21, 2013 (the date of the tenure review
committee’s vote) and that appellant failed to plead facts showing
equitable tolling. Appellant then filed his TAC, the operative
complaint. Similar to the prior amended complaints, the TAC’s
sole cause of action under the FEHA alleged that “LACCD has
engaged in endemic race based employment discrimination,
affecting Plaintiff, and resulting in his denial of
tenure . . . [¶] . . . [and] in his termination from employment.”
The TAC re-alleged that appellant was denied tenure on
November 21, 2013 due to his Mexican ethnicity. It further
alleged that on November 25, 2013, Deborah Paulsen, chair of the
art department, directed appellant in writing to refrain from
3
LACCD reiterated its argument on the exhaustion of
administrative and judicial remedies in subsequent demurrers,
but the trial court did not rule on the issue, and LACCD does not
raise it on appeal.
4
LACCD did not specify when the one-year limitations
period began to run. Rather, it argued that appellant became
aware of the tenure committee’s decision -- and the statute of
limitations began to run -- no later than February 18, 2014, when
appellant initiated his grievance contesting the decision, or no
later than February 26, 2014, when LACCD’s Board of Trustees
“reviewed the decision for a final vote.”
5
raising any questions about the tenure decision. Appellant
received written notice of the Board of Trustees’ final tenure
decision on March 5, 2014, and his employment terminated the
last day of the academic year, June 30, 2014.
The TAC alleged that appellant grieved the tenure
decision, and his grievance was finally denied May 21, 2014. It
further alleged that appellant made a “Pre Complaint Inquiry
with the DFEH in May of 2014 and was provided with an advisor,
Elida Ramirez (‘Ramirez’) for the express purpose of assisting
Plaintiff to properly and timely assert his claim. Plaintiff
explained the basis for his complaint of discrimination, including
but not limited to the decision to deny him tenure. Ramirez
expressly told Plaintiff that he had one year from his last day of
employment to file his DFEH complaint, or June 30, 2015.” The
TAC alleged that appellant filed his DFEH complaint on June 29,
2015.
LACCD demurred to the TAC, arguing that the action was
barred because appellant had failed to file a timely DFEH
complaint and had not pleaded facts sufficient to support
equitable tolling of the statute of limitations. According to
LACCD, as set forth in the TAC, appellant was employed under a
third contract of employment covering the 2012 through 2014
academic years. Pursuant to Education Code section 87609, with
respect to an employee under a third contract, a community
college district has only two options: (1) to employ the
probationary employee as a tenured employee for all subsequent
academic years or (2) to not employ the probationary employee as
a tenured employee. Here, the TAC alleged that the decision to
deny tenure was made November 21, 2013, and appellant was
aware of the tenure decision as of November 25, 2013. LACCD
6
asserted that the adverse employment action was the denial of
tenure. Because appellant was aware of the denial of tenure as of
November 25, 2013, LACCD argued he had one year from that
5
date to file his DFEH complaint.
LACCD further contended that appellant’s claim was not
saved by equitable tolling. Although LACCD acknowledged that
misrepresentations by the DFEH may equitably toll the time for
filing a complaint, it argued that appellant had failed to plead
that he diligently pursued his claim after receiving the allegedly
erroneous advice from the DFEH advisor.
Relying on the Supreme Court’s decision in Romano,
appellant argued the statute of limitations for filing his
administrative claim did not begin to run until the date his
employment ended. He further argued that even if the statute
began to run before that date, he was entitled to equitable tolling,
as he reasonably relied on the advice of DFEH advisor Ramirez to
believe he had until June 30, 2015 to file his DFEH complaint.
5
LACCD did not address Education Code section 87610,
subdivision (b). That section provides: “The governing board
shall give written notice of its decision under Section 87609 and
the reasons therefor to the employee on or before March 15 of the
last academic year covered by the existing contract. The notice
shall be by registered or certified mail to the most recent address
on file with the district personnel office. Failure to give the
notice as required to a contract employee under his or her third
consecutive contract shall be deemed a decision to employ him or
her as a regular employee for all subsequent academic years.”
(Ed. Code, § 87610, subd. (b).) Thus, under LACCD’s
interpretation, the statute of limitations would begin to run
before written notice was given and before the decision to deny
tenure had legal effect.
7
On September 22, 2016, the trial court issued a ruling
sustaining the demurrer to the TAC without leave to amend and
dismissing the action. In its decision, the court ruled that
appellant’s failure to file his DFEH complaint “within one year
from denial of tenure in November 2013” barred his claim for
unlawful “‘discharge’” under the FEHA. The court distinguished
Romano on factual and legal grounds. It also rejected his claim
of equitable tolling.
Judgment dismissing the TAC was entered October 26,
2016. Appellant timely appealed.
DISCUSSION
Appellant contends the trial court erred in sustaining the
demurrer to the TAC. Specifically, he argues that the court
misapplied the applicable statute of limitations and failed to
consider his allegations of equitable tolling. We review a
judgment of dismissal entered after an order sustaining a
demurrer de novo. (Zelig v. County of Los Angeles (2002) 27
Cal.4th 1112, 1126.) “We must take the allegations of the
operative complaint as true and consider whether the facts
alleged establish [appellant’s] claim is barred as a matter of law.”
(Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185,
1191.) As explained below, under the reasoning in Romano, we
conclude appellant timely filed his DFEH complaint when he did
so within one year of the last day of his employment, June 30,
2014.
In the sole cause of action under the FEHA, appellant
alleged that he was denied tenure and his employment was
terminated as a result of illegal discrimination. The filing of a
DFEH complaint within one year of “the date upon which the
8
alleged unlawful practice . . . occurred” is a condition precedent to
the filing of a civil action. (§ 12960, subd. (d).) Appellant
contends that under the reasoning of Romano, the one-year
limitations period to file a DFEH complaint for wrongful denial of
tenure resulting in employment termination begins to run from
the last day of employment. LACCD contends the one-year
limitations period began to run when “the decision to deny tenure
was made,” as the tenure decision inevitably resulted in the
termination of appellant’s employment.6
In selecting the date when the statute of limitations
commences, we are mindful of the public policy animating the
FEHA. The purpose of the FEHA is to “safeguard the employee’s
right to seek, obtain, and hold employment without experiencing
discrimination.” (Romano, supra, 14 Cal.4th at p. 493, citing §§
12920, 12921.) “The FEHA itself requires that we interpret its
6
Before the trial court, LACCD argued that the one-year
limitations period set forth in section 12960 began to run either
from the date of the tenure review committee’s vote (November
21, 2013) or the date appellant became aware of the vote. It
characterized the latter as either when appellant spoke with
Paulsen about the committee’s vote (November 25, 2013) or when
he initiated his grievance contesting the committee’s tenure
decision (February 18, 2014). In its appellate brief, LACCD
argued the FEHA statute of limitations began to run from the
date of the tenure committee’s vote (“November 2013”). During
oral argument, LACCD argued for the first time that the statute
began to run from the date the tenure decision became final,
identifying that date as May 21, 2014, when appellant’s grievance
was finally denied by the grievance review committee. At no time
did LACCD suggest the statute began to run on March 5, 2014,
the date appellant was notified of the Board’s final tenure
decision.
9
terms liberally in order to accomplish the stated legislative
purpose.” (Ibid., citing § 12993, subd. (a).) “‘This liberal
construction extends to interpretations of the FEHA’s statute of
limitations.’” (McDonald v. Antelope Valley Community College
Dist. (2008) 45 Cal.4th 88, 108 (McDonald), quoting Richards v.
CH2M Hill, Inc. (2001) 26 Cal.4th 798, 819.)
In Romano, our Supreme Court was asked to determine
when the one-year limitations period begins to run for wrongful
termination of an at-will employee. The employer argued the
statute of limitations should run from the date the employee was
notified he would be terminated; the employee argued it should
run from the date his employment was terminated. In a
unanimous opinion authored by Chief Justice George, in which
Justice Kennard separately concurred, our Supreme Court
concluded that the purpose of the FEHA would be better served
by interpreting the statute of limitations on a wrongful
termination claim to run from “the date of actual termination,
and not from notification of termination.” (Romano, supra, 14
Cal.4th at p. 494.) The court determined that the remedial
purpose of the FEHA would be furthered if the statute of
limitations began to run on the latter date, as many employees do
not begin to pursue their legal remedies for unlawful discharge
until after a dismissal has occurred. (Ibid., citing Ross v. Stouffer
Hotel Co. (Hawai'i) Ltd. (1994) 76 Hawai’I 454 [879 P.2d 1037,
1045] (Ross).) Interpreting the limitations period to begin
running from the date of actual termination, the court reasoned,
would “promote the resolution of potentially meritorious claims
on the merits.” (Romano, supra, at p. 494.)
The court concluded that such an interpretation would not
impose an undue burden on employers by forcing them to defend
10
stale claims because the period between notification and
termination usually is short. (Romano, supra, 14 Cal.4th at p.
494, citing Ross, supra, 879 P.2d at p. 1045.) The court further
observed that its interpretation had “the obvious benefit of
simplicity,” as, inter alia, “the date of actual termination is a date
that in most cases is subject to little dispute.” (Ibid.) Finally, the
court noted, a contrary interpretation -- “that the statute of
limitations on a claim under the FEHA runs from the time of
notification of termination [--] would promote premature and
potentially destructive claims, in that the employee would be
required to institute a [DFEH] complaint . . . while he or she still
was employed, thus seeking a remedy for a harm that had not yet
occurred.” (Id. at p. 494.)
Although Romano did not involve an employment
termination resulting from the denial of tenure, the court
discussed at length both federal and state decisions involving a
denial of tenure or circumstances analogous to tenure denial. It
first addressed the United States Supreme Court’s decision in
Delaware State College v. Ricks (1980) 449 U.S. 250 (Ricks), a
case involving an analogous statute of limitations under Title VII
of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). There,
a professor was denied tenure, but given a one-year “‘terminal’”
contract. In his subsequent suit alleging racial discrimination,
the Third Circuit held that the time for filing an administrative
complaint ran from the date the professor’s employment ended.
Reversing, the Supreme Court held the time ran from the date of
the alleged unlawful employment practice, viz., the denial of
tenure. Noting that termination of employment at the end of the
one-year contract was merely the “delayed, but inevitable,
consequence of the denial of tenure” (Ricks, supra, at pp. 257-
11
258), the court held that the date commenced to run “when the
tenure decision was made and Ricks was notified.” (Id. at p. 259.)
Romano addressed the Ricks holding. While
acknowledging the distinction between a faculty member notified
of the denial of tenure and an at-will employee notified of an
impending discharge, our Supreme Court expressly “question[ed]
the reasoning of the high court’s decision[]” and unequivocally
signaled its unwillingness to follow Ricks. (Romano, supra, 14
Cal.4th at p. 497.) It noted that because the FEHA itself defines
a discriminatory discharge as an unlawful employment practice,
“it would be anomalous for us to conclude that the limitations
period for that unlawful practice begins to run prior to
discharge.” (Ibid.) More important, the court found the
reasoning of Ricks “not . . . persuasive as applied to the FEHA.”
Observing that “employees should not be required to bring a
lawsuit before discharge,” the court concluded that the rule
announced in Ricks would ‘“increase the number of unripe and
anticipatory lawsuits in the . . . courts -- lawsuits that should not
be filed until some concrete harm has been suffered, and until the
parties, and the forces of time, have had maximum opportunity to
resolve the controversy.’” (Romano, supra, 14 Cal.4th at pp. 497-
498, quoting Chardon v. Fernandez (1981) 454 U.S. 6, 9 (dis. opn.
of Brennan, J.).)
Romano then examined a California case, Regents of
University of California v. Superior Court (1995) 33 Cal.App.4th
1710 (Regents). There, a surgical resident was told she would
have to repeat the third year of her residency or leave the
program, although she would be permitted to work for one year in
a laboratory position before deciding whether to repeat the year
of residency. The plaintiff worked in the laboratory for the next
12
year, declined to repeat her third year, left the program, and
shortly thereafter filed a DFEH claim alleging sex
discrimination. Finding the case “analogous to the failure to
qualify for tenure in Ricks,” the appellate court concluded that as
the plaintiff was aware her failure to qualify for fourth year
residency would result in the termination of her employment at
the close of the next year, “termination of employment was a
‘delayed, but inevitable, consequence’ of . . . not repeating a year
in . . . the residency program.” (Regents, supra, at p. 1717.)
Accordingly, under the reasoning of Ricks, the statute of
limitations for filing her DFEH complaint ran from the date she
was told she would be required to repeat her third year.
Romano expressly disapproved Regents: “[W]e are not
persuaded by this authority that the limitations period under the
FEHA for an actual discharge should begin to run at the point
the employee is notified that his or her employment will be
terminated, and any contrary assertion in the Regents case is
disapproved.” (Romano, supra, 14 Cal.4th at pp. 499-500.) Later,
the court reiterated its disapproval of Regents’s holding that “the
statute of limitations for claims under the FEHA begins to run
when the adverse employment decision is communicated to the
employee, not at termination.” (Id. at p. 502.)
LACCD contends that denial-of-tenure cases are factually
and legally distinguishable from nontenure cases, noting, inter
alia, that unlike the private employer in Romano, following the
denial of tenure, LACCD is statutorily prohibited by Education
Code section 87609 from employing appellant as a faculty
13
member.7 We acknowledge that because Romano was not a
denial-of-tenure case, the court’s statements about Ricks and
Regents were not necessary to its holdings. However, “[e]ven if
properly characterized as dictum, statements of the Supreme
Court should be considered persuasive. [Citation.]” (United
Steelworkers of America v. Board of Education (1984) 162
Cal.App.3d 823, 835.) “To say that dicta are not controlling
[citation] does not mean that they are to be ignored; on the
contrary, dicta are often followed.” (9 Witkin, Cal. Procedure (5th
ed. 2008) Appeal, § 511, p. 575.) As one appellate court has
advised: “Generally speaking, follow dicta from the California
Supreme Court.” (Hubbard v. Superior Court (1997) 66
Cal.App.4th 1163, 1169, citing People v. Trice (1977) 75
Cal.App.3d 984, 987.) This is especially true when, as here, the
Supreme Court has reached well beyond the holding necessary to
its opinion to express its broader view. Romano could easily have
distinguished Ricks and Regents as cases involving denial of
tenure or analogous circumstances and stopped there. Instead, it
went on to question the reasoning of the former decision and to
expressly disapprove the latter.8
7
During oral argument, LACCD acknowledged that
appellant could be employed in a nonfaculty position. (See also
Ed. Code, § 87600 [Education Code section 87609 applies only to
employment in “faculty positions”].)
8
As noted, Justice Kennard joined the Romano opinion and
concurred in the result. She suggested, however, that the court’s
discussion of Ricks did “not imply that employment terminations
resulting from denial of tenure would necessarily be subject to
the holdings announced in this nontenure case.” (Romano, supra,
14
Here, assuming the denial of tenure was discriminatory,
the harm resulting from that wrongful act was, as alleged in the
TAC, the termination of appellant’s employment. While the
denial of tenure set off the chain of events resulting in the
termination of appellant’s employment, the resulting harm
occurred when his employment actually ended. (See Romano,
supra, 14 Cal.4th at p. 494 [no harm has occurred while employee
still employed].) Moreover, even if, as in Regents, the termination
of appellant’s employment constituted a “‘“delayed, but
inevitable, consequence”’” of the decision to deny tenure, the
Romano court expressly disapproved using the date of
notification of termination as the date on which the one-year
limitations period begins to run. (Romano, at pp. 499, 502.)
We acknowledge that both case law and rational policy
considerations may militate in favor of a rule that in cases
involving an allegedly discriminatory denial of tenure, the statute
of limitations for filing an administrative complaint runs from
the date the employee is notified of the final tenure decision.
Had our Supreme Court in Romano merely distinguished denial-
of-tenure cases from the case before it, we might well adopt such
a rule. But we cannot ignore the language of Romano or the fact
that our highest court expressly questioned and unequivocally
criticized cases adopting that approach. Until our Supreme
Court indicates otherwise, we take the language of Romano as a
14 Cal.4th at p. 503 (conc. op. Kennard, J.).) To the extent the
discussion of Ricks is dicta, we agree nothing in the opinion
would “necessarily” bind the court in a case alleging termination
resulting from a discriminatory denial of tenure. As to the
reasoning underlying the discussion of Ricks, we do not see how
the implications for denial-of-tenure cases can be avoided.
15
directive and apply its reasoning to the facts before us. Under
that reasoning, the one-year limitations period set forth in
section 12960 began to run on the last day of appellant’s
employment with LACCD. As appellant filed his DFEH
complaint within one year of that date, it was timely, and the
trial court erred in sustaining LACCD’s demurrer to the TAC.
9
DISPOSITION
The judgment of dismissal is reversed. Appellant is
awarded his costs on appeal.
CERTIFIED FOR PUBLICATION.
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
9
In light of our holding that the statute of limitations began
to run on the last day of appellant’s employment, we need not
address his claim of equitable tolling.
16