Free Proposed Findings of Fact - District Court of California - California

Case 5:05-cv-01824-RS

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KATHRYN BURKETT DICKSON (State Bar # 70636) Dickson - Ross LLP 1970 Broadway, Suite 1045 Oakland, CA 94612 Telephone: (510) 268-1999 Facsimile: (510) 268-3627 E-mail: [email protected] CLAUDIA CENTER (State Bar # 158255) The Legal Aid Society-Employment Law Center 600 Harrison St., Suite 120 San Francisco, CA 94107 415-864-8848 Fax: 415-864-8199 Email: [email protected] LESLIE LEVY (State Bar # 104634) JEAN HYAMS (State Bar # 144425) DARCI BURRELL (State Bar # 180467) Boxer & Gerson 300 Frank H. Ogawa Plaza, Suite 500 Oakland, CA 94612 (510) 835-8870 Fax: (510) 835-0415 Email: [email protected] Attorneys for Plaintiff GREGORY NEAL GRIMES UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION GREGORY NEAL GRIMES Plaintiff, v. UNITED PARCEL SERVICE, INC.; and DOE 1 - DOE 10, . Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. 05-cv-01824-RS PLAINTIFF'S [PROPOSED] FINDINGS OF FACTS AND CONCLUSIONS OF LAW RE EQUITABLE TOLLING

Pursuant to the Court's Order, Plaintiff submits the following proposed findings of fact 27 and conclusions of law supporting the application of the equitable tolling doctrine to the filing of 28
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Plaintiff's DFEH charge, minimally extending the deadline.1 FINDINGS OF FACT 1. UPS provided inconsistent dates for Mr. Grimes's termination, including February

3, 4, 5, and 6, 2002. Reporter's Transcript (RT): 862:5-13 & Trial Exhibit (Exh.) 36 [indicating date of termination was February 4, 2002]; RT:315:17-22 & 1398:18 - 1399:9 [February 6]; Exh. 14 [the termination letter is dated February 5, 2002, but states the "effective date" of the termination is February 3, 2002]. 2. Mr. Grimes contacted the DFEH by telephone well before any deadline; and the

DFEH scheduled an intake interview for December 19, 2002, which was confirmed by letter from the agency. RT: 530:4 - 531:10; Exh. 413. 3. Mr. Grimes was in Seattle, Washington at this time; and the DFEH office was

located in Oakland, California. RT: 530:21 - 531:2. 4. A DFEH representative called Mr. Grimes before the scheduled appointment and

asked that he reschedule it. RT: 531:12-16. 5. During January and early February, 2002, Mr. Grimes had several telephone

conversations with representatives of the DFEH, discussing when he needed to file the charge, what he could expect at the appointment, and materials he needed to gather to bring with him. RT: 532:4-15; 533:16 - 534:24; 794:13 - 797:7; Exh. 438. The representative informed Mr. Grimes that he needed to file by February 7, 2003 and his appointment was rescheduled for that time. RT:534:2 - 535:2; 736:16 - 739:14. 6. Mr. Grimes flew down from Seattle and met with the DFEH representative in

person, submitted a pre-complaint questionnaire, other supporting written materials, and signed his administrative charge on February 7, 2003. RT:532:16 - 533:15; 534:22 - 537:14; Exhs. 583 & 584. That was the deadline he understood that he needed to file his complaint, based on conversations with the DFEH representative he spoke with in January and early February, 2003.

Plaintiff assumes the Court has copies of the trial transcript and the trial exhibits. If the Court desires, Plaintiff can supply copies of the record citations and the exhibits and would be pleased to do so if the Court would notify us of that need.
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RT:743:12 - 745:8. 7. In his DFEH pre-complaint questionnaire, Mr. Grimes answered question number

2 regarding dates of discriminatory actions, on the face of the form and in the attachment to the form (Exh. 583, first and third pages). He stated that he was terminated February 5, 2002; was notified via UPS 1DA [1 Day Air], delivered on February 7, 2002 [according to UPS records], and that he actually received the letter on February 18, 2002. Exh. 583. 8. Mr. Grimes testified at trial that the February 18, 2002 date of actual receipt was

in error. At the time of filling out the DFEH forms in February, 2003, Mr. Grimes knew that he had received the termination letter later than the 7th of February, and saw a reference on a calendar he maintained that indicated Beth [Bayer], from whom he had recently separated, had given him some of his mail on February 18th. That formed his belief that the date he actually received the termination letter was February 18, 2002, and was the basis for his statements in the DFEH questionnaire and charge. RT: 537:20 - 538:11. 9. Subsequent to the filing of the DFEH charge, and in preparation for filing his

complaint in court, pro se, Mr. Grimes reviewed phone records and chronological communication logs provided by Kemper (UPS's disability administrator at the time). Those records indicated that Mr. Grimes had a conversation with Kemper on February 12, 2002, referring to having just received the termination letter and that refreshed Mr. Grimes's recollection that the date of actual receipt was February 12, 2002, rather than February 18, 2002. RT:538:12 - 539:6. 10. Mr. Grimes believed that his charge was timely filed based on EEOC Guidance,

which he understood embodied a "notice" rule for triggering the statute of limitations, as well as California case law. RT: 736:16-20; 758:5-21. 11. Throughout his dealings with the DFEH, Mr. Grimes was not represented by

counsel. Declaration of Plaintiff Gregory Grimes in Support of Plaintiffs Opposition to Defendant UPS's Motion for Summary Judgment, ¶13, p.5:19-21. 12. The testimony of Timothy Bullivant, who was formerly a DFEH employee, does

not contradict Mr. Grimes's testimony. Mr. Bullivant testified that he did not know whether Mr.
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Grimes's earlier-scheduled appointment had been cancelled by DFEH or not. RT:1393:17-20. Bullivant acknowledged that, although it is somewhat unusual for the agency to cancel appointments, it did happen. While he is aware of that happening on at least three occasions in his own personal experience, he is not aware of every time the agency cancelled someone's appointment and does not know how many times that may have occurred beyond his own experience. RT:1393:22 - 1394:9. Bullivant testified that in the relevant time period, DFEH was scheduling appointments from six weeks to a couple of months after contact by a potential complainant. RT:1394:10-20. Bullivant also testified that when appointments were cancelled or the agency couldn't get to people, they would call them and reschedule the appointment on the phone (as Mr. Grimes testified occurred in this instance). RT: 1379:17-25. Mr. Bullivant acknowledged that Mr. Grimes was always candid with him that UPS claimed it had delivered the termination letter on February 7, 2002. RT:1407:17-22. Finally, with regard to Mr. Grimes's understanding based on California case law and the EEOC Guidance setting forth a "notice" rule for the deadline, Mr. Bullivant testified that Mr. Grimes informed him that was the basis for his understanding; but, Mr. Bullivant never looked up the guidance or case law nor did he ask Mr. Grimes to provide any additional information on that subject. RT:1408:6-16. CONCLUSIONS OF LAW 1. The Court has previously determined that the statute of limitations for Mr.

Grimes's filing of a DFEH charge was one year from the date of notice provided by the employer, or February 7, 2003, and that Mr. Grimes's charge was timely filed as a matter of law. This ruling was based on the California Supreme Court decision in Romano v. Rockwell Int'l, 14 Cal.4th 479, 492 (1996). The Romano Court had to decide when a claim for wrongful termination accrued ­ in December 1988 when the plaintiff learned he was slated for termination, or on May 31, 1991, when he was actually terminated. Citing, inter alia, the requirement that the FEHA be liberally interpreted to achieve its purpose, the Court held that the termination "occurred" on the later date. Nowhere did the Court suggest that a termination "occurs" when the dismissal letter is written by an employer as opposed to received by an employee. Such a rule would be contrary to basic contract principles requiring notice of termination, and would impose
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unfair and unexpected results 2. The findings and conclusions in this Order address whether, alternatively, the

Court should invoke the doctrine of equitable tolling to minimally extend the deadline for the administrative charge should the triggering date be determined to be the "effective date" of the termination, or February 3, 4, 5, or 6, 2002, rather than the date of "notice." 3. Under such circumstances, Plaintiff has requested the Court to apply equitable

tolling principles to extend the statute by as little as one day and no more than 4 days. 4. Both California and federal courts construing the Fair Employment and Housing

Act provide for equitable tolling of the statute of limitations for filing an administrative charge. In Holland v. Union Pacific Railroad Co., 154 Cal.App.4th 940, (2007), the plaintiff (who, like Mr. Grimes, was not represented by counsel at the time) filed his administrative complaint for disability discrimination and failure to accommodate on July 15, 2004, more than one year after his unlawful suspension of July 3, 2003. The DFEH representative accepted and filed his complaint on July 15th. The DFEH provided the deadline date and assured the plaintiff that his filing was timely. The appellate court held that DFEH exhaustion was merely a procedural, not a jurisdictional, prerequisite to suit, and is subject to equitable tolling, citing a long line of authority. Id. at 942, 945-46. In particular, equitable tolling applies where complainants, like Plaintiff, are misled through no fault of their own as a result of inaccurate advice from the DFEH, again citing other cases so holding. Id. 5. Similarly, in Josephs v. Pacific Bell, 443 F.3d 1050 (9th Cir. 2006), the Ninth

Circuit reiterated the rule that "[a]n equitable exception to the exhaustion requirement is available when an EEOC representative misleads the plaintiff concerning his claim." Id. at 1054 ("Such relief may be granted to a plaintiff who: (1) diligently pursued his claim; (2) was misinformed or misled by the administrative agency responsible for processing his charge; (3) relied in fact on the misinformation or misrepresentations of that agency, causing him to fail to exhaust his administrative remedies; and (4) was acting pro se at the time.")(citing and quoting from Rodriguez v. Airborne Express, 265 F.3d 890, 901-02 (9th Cir. 2001)).

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6.

Here, Plaintiff Grimes was not represented by counsel at the time of the filing his

administrative charge, contacted the agency in a timely manner, was located geographically distant from the DFEH office, and relied on the representations of the agency as to the deadline for filing. 7. The Court concludes, under the circumstances here, and guided by the cases cited

above and noting the minimal extension involved, the principles of equitable tolling should be applied to extend the deadline by one to four days for the filing of the DFEH charge and that Mr. Grimes's filing on February 7, 2003 is deemed timely.

Dated: April 4, 2008

DICKSON - ROSS LLP 1970 Broadway, Suite 1045 Oakland, CA 94612 Ph: 510-268-1999 Fax: 510-268-3627 E-mail: [email protected]

By:

/s/ Kathryn Burkett Dickson Kathryn Burkett Dickson, Counsel for Plaintiff, GREGORY NEAL GRIMES

The Court adopts the findings of fact and conclusions of law set forth above. IT IS SO ORDERED. Dated: ___________________________ ___________________________________ Richard Seeborg UNITED STATES MAGISTRATE JUDGE

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