2007-25

General One-Year Statute of Limitations Applies to Actions Which Seek to Recover Only Waiting Time Penalties for Untimely Final Wages

 In McCoy v. Superior Court, Derrick McCoy and others filed a class action against their former employer, Kimco Staffing Services, seeking waiting time penalties under Labor Code section 203 for Defendant?s alleged failure to timely pay final wages on completion of temporary work assignments, in violation of Labor Code sections 201 and 202. The complaint alleged that, instead of paying Plaintiffs upon discharge or within 72 hours of resignation, Defendant paid them on the next scheduled pay day (although the opinion did not identify how many days elapsed before Plaintiffs received their final wages). However, Plaintiffs sought only waiting time penalties and did not sue for the underlying wages, as Plaintiffs admit those wages were paid.

 The last sentence of Labor Code section 203 states: ?Suit may be filed for these penalties at any time before the expiration of the statute of limitations on an action for the wages from which the penalties arise.? Defendant maintained that in an action where only penalties are sought, the case is governed by Code of Civil Procedure section 340(a), the usual one year statute of limitations for statutory penalties. Plaintiff contended that the statute of limitations in section 203 applies to any action for penalties, regardless of whether there is also a claim ?for the wages from which the penalties arise.? The California Court of Appeal agreed with the employer?s interpretation of the statute.

Three Instances of Harassing Behavior Did Not Create A Hostile Work Environment

 In In Mokler v. County of Orange, the California Court of Appeal found that the conduct alleged by Pamela Mokler, a employee of the County of Orange, did not rise to the level of actionable sexual harassment.

 Mokler worked for the County?s Office on Aging (OoA) as its Executive Director. Mokler made various complaints to her supervisors about a proposed change to the County?s contract process, claiming that such change would violate the County?s contract with the California Department of Aging (CDA).

 Mokler?s supervisors instructed her both verbally and in writing not to communicate with the CDA about these issues. Mokler?s supervisors learned that she contacted the CDA official, after they instructed her not to do so. Later that same day, Mokler was placed on administrative leave. She was subsequently terminated.

 During her employment, Mokler?s duties required her to interact with County Supervisors on an almost daily basis. Mokler met Supervisor Chris Norby, at a budget hearing on January 29, 2003, shortly after he was elected. Norby asked her if she was married and when she answered ?no,? Norby said, ?so you?re the aging nun.? Mokler felt degraded and reported the incident to Baker. On February 5, 2003, Mokler encountered Norby at a hotel during a victory party for another newly elected Supervisor. Upon Mokler?s greeting, Norby took her arm, pulled her to him so that the sides of their bodies were touching and then said in a flirtatious manner, ?did you come here to lobby me?? When Mokler responded that as a staff member she does not lobby, Norby, who had two women standing next to him, responded, ?Why not? These women are lobbying me.? Norby also told Mokler that she had a nice suit and nice legs and looked up and down at her. She again reported these actions to Baker, who told her to be careful and that she needed ?to win him over.?

 Mokler?s third and final encounter with Norby occurred on March 3, 2003 at Norby?s office. While she waited in the reception area, Norby appeared, told her she looked nice and put his arm around her. He then walked over to a large map and asked her where she lived. When she hesitated, Norby demanded she provide her exact address. Norby then put his arm around Mokler again and as he did so, rubbed her breast with his arm. Mokler pushed herself away. As Mokler began to discuss the services provided by the OoA, Norby, with a male staffer present, interrupted her saying: ?Why the f*** do you have to do something special for Mexicans.?

 At trial, Mokler prevailed on her retaliation claim. The County was able to show a legitimate nondiscriminatory reason for the adverse employment action by presenting evidence of three independent investigations concluding Mokler breached County procurement procedures. However, evidence of pretext was established by showing that Mokler had never been reprimanded or received a negative performance review during her employment before she complained, she received high praise for her relationship with a particular coalition before she complained, yet it was this ?relationship? with the coalition that was used as one of the reasons to support her termination. Also, pretext could be inferred from the fact that prior to her discharge, no one ever told her that she had done anything wrong in the way she handled certain projects, yet this criticism was used by the County as another basis for her termination. The Court of Appeal affirmed the judgment in Mokler?s favor on the retaliation claim, finding that it was supported by substantial evidence.

 As to her claim of sexual harassment, Mokler prevailed at trial, but the Court of Appeal found the evidence was insufficient and reversed the judgment on this claim. The court noted that the harassment of Mokler occurred on three occasions over a five-week period, and involved no physical threats. As such, the court concluded that those three acts described fell short of establishing a pattern of continuous, pervasive harassment necessary to show a hostile working environment under the law. Taken as a whole, the acts described demonstrate rude, inappropriate and offensive behavior. But to be actionable, a workplace must be permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim?s working environment. The conduct alleged by Mokler fell short of these standards.

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