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

Case 5:05-cv-01824-RS

Document 383

Filed 04/04/2008

Page 1 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

E. JEFFREY GRUBE (SB# 167324) [email protected] KERRI N. HARPER (SB# 217377) [email protected] PAUL, HASTINGS, JANOFSKY & WALKER LLP 55 Second Street Twenty-Fourth Floor San Francisco, CA 94105-3441 Telephone: (415) 856-7000 Facsimile: (415) 856-7100 ELIZABETH A. FALCONE (SB# 219084) [email protected] PAUL, HASTINGS, JANOFSKY & WALKER LLP 515 South Flower Street Twenty-Fifth Floor Los Angeles, CA 90071-2228 Telephone: (213) 683-6000 Facsimile: (213) 627-0705 Attorneys for Defendant UNITED PARCEL SERVICE, INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION GREGORY NEAL GRIMES, Plaintiff, vs. UNITED PARCEL SERVICE, INC.; and DOE 1 - DOE 10, Defendants. CASE NO. 5:05-CV-01824-RS DEFENDANT UNITED PARCEL SERVICE, INC.'S [PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING EQUITABLE TOLLING OF THE STATUTE OF LIMITATIONS ON PLAINTIFF'S FEHA CLAIMS

CASE NO. 5:05-CV-01824-RS
LEGAL_US_W # 58571949.2

[PROPOSED] FINDINGS OF FACT & CONCLS. OF LAW RE EQUITABLE TOLLING

Case 5:05-cv-01824-RS

Document 383

Filed 04/04/2008

Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant United Parcel Service, Inc. ("UPS") submits the following proposed findings of fact and conclusions of law regarding Plaintiff's request for equitable tolling of the time period for filing his administrative Charge with the California Department of Fair Employment and Housing ("DFEH"): A. Findings of Fact 1. UPS administratively separated Plaintiff effective February 3, 2002. UPS

memorialized the separation in a letter dated February 5, 2002, which was sent to Plaintiff no later than February 6, 2002. Trial Exh. 35. 2. 2002. Trial Exh. 559. 3. On December 12, 2002, the DFEH sent Plaintiff a letter informing him that The separation letter was delivered to Plaintiff's home on February 7,

he had an intake appointment scheduled with it for December 19, 2002. Trial Exh. 413. 4. Plaintiff testified that between December 12 and December 19, 2002, an

unidentified woman from the DFEH called him to cancel this appointment. No letter of cancellation was offered into evidence. The Court finds Plaintiff's testimony not to be credible. 5. Based on all of the evidence presented at trial, including but not limited to

the testimony of Plaintiff and the DFEH investigator with whom Plaintiff ultimately met in February 2003, Timothy Bullivant, the Court finds that Plaintiff either missed or cancelled his December 19, 2002 appointment of his own accord. 6. Plaintiff testified that he was told by one or more unidentified individuals

at the DFEH that he had until February 7, 2003 to file his DFEH Charge. Plaintiff's testimony is not credible. 7. Bullivant testified that it is the DFEH's practice to calculate the date that

someone must file their charge from the effective date of termination, not the date the potential claimant could have learned about the termination. Therefore, telling Plaintiff that he could file his DFEH Charge by February 7, 2003 would have been contrary to DFEH practice. The Court found Bullivant to be a credible witness.

CASE NO. 5:05-CV-01824-RS
LEGAL_US_W # 58571949.2

-1-

[PROPOSED] FINDINGS OF FACT & CONCLS. OF LAW RE EQUITABLE TOLLING

Case 5:05-cv-01824-RS

Document 383

Filed 04/04/2008

Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

8.

Based on all of the evidence presented at trial, including but not limited to

the testimony of Plaintiff and Bullivant, the Court finds that no one at the DFEH told Plaintiff that filing his DFEH charge after February 3, 2003 would be timely. 9. When Plaintiff met with Mr. Bullivant on February 7, 2003, Plaintiff

intentionally misled the DFEH as to the date of his termination and the date he received notice of his termination from UPS. 10. To the extent Plaintiff had any substantive conversations with the DFEH

prior to meeting with Mr. Bullivant on February 7, 2003, he similarly provided misleading, conflicting, and false information to those persons. B. Conclusions of Law 1. UPS contends that under Romano v. Rockwell Int'l, Inc., 14 Cal. 4th 479,

492 (1996), the statute of limitations on Plaintiff's FEHA-based termination claims began to run on the effective date of his termination--February 3, 2002--not the first date on which Plaintiff could have learned of his termination--February 7, 2002. Under this rule, Plaintiff's DFEH Charge would be 4 days late, and each of his FEHA-based termination claims untimely. The Court ruled during trial that Romano does not set forth such a rule and that Plaintiff's DFEH Charge was timely, because he filed his Charge within 1 year from receipt of the termination letter. 2. Nevertheless, the parties tried the issue of equitable tolling to the Court,

and the Court heard sufficient evidence during trial to rule on whether, if Plaintiff's DFEH Charge was untimely, he is entitled to equitable tolling. The Court finds that Plaintiff is not. 3. To be entitled to equitable tolling, Plaintiff must have established that

through no fault of his own, he was misled by the DFEH into filing his DFEH Charge too late. Josephs v. Pac. Bell, 443 F.3d 1050, 1054 (9th Cir. 2006); Holland v. Union Pac. R.R. Co., 154 Cal. App 4th. 940, 946 (2007). 4. Here, equitable tolling does not apply for two independent reasons: (1)

The DFEH did not tell Plaintiff that he could file his Charge when he did; and (2) Any statements

CASE NO. 5:05-CV-01824-RS
LEGAL_US_W # 58571949.2

-2-

[PROPOSED] FINDINGS OF FACT & CONCLS. OF LAW RE EQUITABLE TOLLING

Case 5:05-cv-01824-RS

Document 383

Filed 04/04/2008

Page 4 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

from the DFEH were informed by the misleading, conflicting, and false information Plaintiff provided to it. C. Decision

For each of the foregoing reasons, the Court finds that Plaintiff failed to establish that the statute of limitations on his FEHA claims was subject to equitable tolling. If Plaintiff's FEHA claims are time-barred, then he is not entitled to equitable tolling. IT IS SO ORDERED.

DATED: ____________________ _________________________________________ MAGISTRATE JUDGE RICHARD SEEBORG

CASE NO. 5:05-CV-01824-RS
LEGAL_US_W # 58571949.2

-3-

[PROPOSED] FINDINGS OF FACT & CONCLS. OF LAW RE EQUITABLE TOLLING