"Plaintiff Cannot Use the Continuing-Violation Theory"
by Richard S. Rosenberg and John J. Manier

Under the judicially-created "continuing violation" doctrine, an employer may be liable for discrimination occurring outside the statute of limitations where the conduct is sufficiently connected to unlawful actions within the limitations period. Both the California and United States Supreme Courts have adopted the continuing violation doctrine in statutory job bias cases. Richards v. CH2M Hill, 26 Cal.4th 798 (2001); National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (2002).

The Sixth District Court of Appeal's recent decision in Cucuzza v. City of Santa Clara, 2002 DJDAR 14531 (Dec. 23, 2002), marks the first time since Richards that a published state court opinion has addressed the continuing violation doctrine outside the context of harassment and disability accommodation claims. The court found the doctrine to be unavailing for Plaintiff Sue Cucuzza, who alleged sex discrimination over a five-year period with respect to job assignments.

Cucuzza works for the City of Santa Clara's Automotive Services Department. She was promoted to the position of service writer/parts manager in 1990. From 1991-1993, Cucuzza was responsible for technical tasks which entailed working in the shop area. She found these duties preferable to her administrative office functions.

In 1993, the City hired a new shop foreman, Claude Edwards, who began performing technical tasks in place of Cucuzza. Cucuzza filed a grievance in 1994 over the loss of these job duties. She allegedly believed that Edwards was discriminating against her based on sex, but she did not mention this issue in her grievance.

The City offered to resolve the grievance by allowing Cucuzza to transfer to the Division of Municipal Services. Cucuzza accepted the transfer, but returned to the service writer/parts manager job one year later.

Cucuzza claimed that she was assured she would be allowed to perform technical duties once again, but soon discovered that Edwards continued to perform these tasks. Cucuzza allegedly suspected that Edwards was discriminating against her once again, but she did not seek to correct the situation and instead chose to "bide her time."

Cucuzza's position was reclassified in 1996, and she received a modest pay raise. Although the new job description listed some technical duties, Edwards and others continued to perform those functions which Cucuzza found preferable. Instead, Cucuzza was assigned a variety of administrative and clerical tasks. In 1997, Edwards assumed Cucuzza's tasks of writing equipment specifications and maintaining vendor contact.

In March 1998, the City hired Art Vizcarra as an equipment mechanic/technician, and he assumed Cucuzza's former technical job tasks. Edwards introduced Vizcarra to the staff as the new service writer, and told Cucuzza she was not qualified for this job.

Cucuzza filed a charge of discrimination with the Department of Fair Employment and Housing in September 1998, claiming that she was denied the service writer job because of her gender. While this charge was pending, the City underwent yet another reorganization and created a new fleet assistant position, which included Cucuzza's former technical duties and some additional computer based tasks.

Cucuzza, Vizcarra and two others applied for the fleet assistant job. The City retained three outside raters to conduct an oral civil service examination. Vizcarra received the highest score (90) and Cucuzza received the lowest (72). Vizcarra also possessed two "highly desirable" certifications which Cucuzza lacked. The City selected Vizcarra.

Cucuzza sued the City for sex bias under the Fair Employment and Housing Act, Gov. Code Section 12900 et seq. The City moved for summary judgment, contending that: (1) any liability for acts occurring before September 1997 was barred by the one-year statute of limitations under Gov. Code Section 12960; and (2) its actions within the limitations period were non-discriminatory. The trial judge granted the City's motion, and the Court of Appeal affirmed.

Cucuzza argued that the City's alleged discriminatory conduct dating back to 1993 was actionable under the continuing violation doctrine. She relied on the state Supreme Court's holding in Richards that actions outside the limitations period may constitute a continuing violation if they (1) are "sufficiently similar in kind," (2) "have occurred with reasonable frequency," and (3) "have not acquired a degree of permanence."

As the Court of Appeal explained, "[t]he first two prongs of the Richards test incorporate the broad issue of relatedness." Thus, acts which are sufficiently similar and frequent "will be deemed a continuing course of conduct rather than separate acts of misconduct" for statute of limitations purposes.

However, because it would be unfair to permit an employee "to extend the limitations period indefinitely," Richards also added the "permanence" prong "which sets an outside limit on the length of time a course of conduct may continue before it will be barred." Under this prong, the limitations period begins to run either when the discriminatory practice ends, or "when the employee is on notice that further efforts to end the unlawful conduct will be in vain."

The court in Cucuzza stated that although Richards was a disability accommodation and harassment case, the Richards test nevertheless applied to Cucuzza's gender bias claim based on denial of employment opportunities. Under the Richards test, the court ruled that Cucuzza failed to raise a triable issue as to the statute of limitations.

As to the first two prongs of the Richards test, the court found that the conduct alleged by Cucuzza looked "much more like a collection of isolated employment decisions" than "a continuing course of conduct." At any rate, the court held that Cucuzza's situation became permanent "well over a year" before she filed her action.

The court noted that the City's response to Cucuzza's 1994 grievance was to offer her a transfer to a different division, rather than restore her former technical job duties which Edwards had assumed in 1993. Indeed, Cucuzza admitted this was the "only choice" the City gave her. The court found the City's response to be a "definitive denial" of the relief Cucuzza sought.

While Cucuzza supposedly believed "there was some ongoing effort to resolve her grievance" when she transferred back to her old job in 1995, this was based solely on her own "hope," rather than any specific discussions. Cucuzza allegedly asked Edwards to allow her to return to the shop floor and resume her previous technical duties, but admitted that Edwards "invariably and unequivocally denied her request."

Cucuzza also argued that when the City eliminated the service writer/parts manager job in 1996, it concealed its need for a service writer and caused her to believe "there was nothing she could do" to regain her desired duties. The court found this argument to be illogical, and that it defeated the continuing violation doctrine in any event because it established Cucuzza's knowledge that the situation was "permanent as to her in 1996."

The court also held there were no triable issues as to actions within the limitations period, which consisted of Edwards' limitation of Cucuzza's job duties and the hiring of Vizcarra for the fleet assistant position. The City offered "legitimate non-discriminatory business reasons" for all of these decisions, and Cucuzza offered no evidence to show that the City acted out of pretextual, discriminatory motives.

Cucuzza relied on three alleged discriminatory comments by Edwards: (1) he moved Cucuzza's desk out of his office and allegedly told her to relocate to the front office "with the other women"; (2) he once referred to the women in the front office as "his harem"; and (3) he said that "women have their place in the pecking order along with all the other farm animals."

The court observed that Edwards' alleged comments were "insensitive and possibly demonstrative of his personal bias against women." However, the comments did not controvert the City's explanation for its decisions, particularly since Edwards was not even involved in the selection of Vizcarra for the fleet assistant position. Having found no triable issues as to any of Cucuzza's claims, the court affirmed the summary judgment in favor of the City.

The decision in Cucuzza suggests it will be problematic for plaintiffs to avail themselves of the continuing violation doctrine outside the context of harassment or disability accommodation cases such as Richards. Notably, the court in Richards did not decide whether the doctrine applies to job bias claims other than those involving alleged harassment or failure to accommodate a disability.

After Richards was decided, the U.S. Supreme Court in Morgan created a "bright-line" rule that federal job bias law "precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period," and that the continuing violation doctrine is unavailable in claims based on discrete acts. The court in Morgan thus limited its application of the continuing violation doctrine to harassment cases.

While the court in Cucuzza did not cite or discuss Morgan, the results in the two cases are consistent. Under both cases, employees who simply "bide their time" in the face of alleged discriminatory actions may not be able to take advantage of an extended limitations period under the continuing violation theory.