THE ASSOCIATION OF SOUTHERN CALIFORNIA DEFENSE  COUNSEL

VERDICT

CONTINUING VIOLATION DOCTRINE

by Christopher Wesierski and Bruce Rorty

The continuing violation issue recently arose during a three-week jury trial in state court involving a fast food restaurant employee who claimed to have been sexually harassed over a number of years by several different co-employees. The restaurant had filed a pretrial motion in limine to exclude acts occurring both prior to and subsequent to the chief allegations of harassment. Towards the end of plaintiff's case in chief, the trial court requested further briefing on the continuing violation doctrine as it applied to the prior and subsequent acts. Plaintiff alleged that a male shift supervisor sexually harassed her in 1991. Although she claims he committed 10-15 separate acts of physical sexual harassment in 1991, plaintiff never filed a complaint against him with the EEOC or California's Department of Fair Employment and Housing (DFEH or FEHA.) The supervisor's alleged harassment ended in July 1991. After an investigation, he was terminated in July 1991, too.
There were no acts of sexual harassment directed towards plaintiff between July 1991 and September 1992, a period of approximately 14 months. In September 1992, an employee allegedly cussed at her but did not physically touch her. Beginning in January or February 1993, and continuing into March of 1993, she was allegedly harassed for a period of one month by another co-employee. She timely filed her discrimination claim on May 4, 1993, but made no mention of the 1991 harassment in her EEOC and DFEH complaints. During the period of time in question, the plaintiff had turned down a number of promotions.
The employee also claimed post-May 1993 acts of sexual harassment by two other co-employees who were supervisors, but did not file EEOC or DFEH complaints about those incidents. The parties to this action conducted discovery over the winter 1993 incidents only. The employer was not given the opportunity to conduct discovery concerning alleged sexual harassment which occurred after May 1993.
The employee posited that the 1991 and post-May 1993 incidents of harassment, when combined with the winter 1993 incidents, established a continuing violation based on the employer's history of transferring "sexual predators" to the restaurant in question. The restaurant countered that the 1991 acts were barred as outside the limitations period, while the alleged acts occurring after May 1993 were barred in that plaintiff had not filed her EEOC or DFEH claims, thereby not having exhausted her administrative remedies.
Finally, the restaurant argued it would be greatly prejudiced on due process grounds by introduction of the post-May 1993 claims in that it had been precluded by the discovery cut-off from conducting any discovery into those incidents.
After lengthy oral argument, the trial court found the 1991 and post-May 1993 incidents to be separate and discrete from the winter 1993 incidents which formed the basis of the EEOC/DFEH claims, and therefore excluded them from the jury. The jury eventually found for the employer and rendered a unanimous defense verdict, from which no appeal was filed. 

EMPLOYEE'S PERSPECTIVE
A discrete, actionable event, not necessarily discriminatory in and of itself, must occur during the applicable limitations period. The earlier events occurring outside the limitations period must have a substantial relationship to the event inside the limitations period. Evidence of a longterm pattern of discrimination applied to the employee in question, when combined with management's knowledge of and ratification of the pattern of discrimination, will bring the continuing violation doctrine into play and defeat a statute of limitations defense. The discriminatory events need not be committed by one individual or by supervisors to be actionable. Depending on the type of case, timely and untimely violations brought together will often support substantially higher settlements and jury verdicts. In the case at hand, plaintiff had obtained the personnel files for all the alleged "predators" which showed previous conduct by the harassers at other restaurant locations. Plaintiff argued management ignored the previous personnel file incidents, and continued to transfer them to a store with ongoing personnel problems.

PRACTICE TIP-EMPLOYEES
Beginning with the initial interview, all events that could possibly be actionable discrimination must be pulled out of the client in great detail. A timeline with names and dates will often put a number of incidents into perspective. Post-charge filing incidents must also be cataloged. All events that could possibly need to be tied in together must be set out in the EEOC or other administrative agency complaint.
Prior to filing suit, witnesses no longer working at the business will need to be interviewed and if favorable, statementized. A detailed and comprehensive discovery plan should be prepared before filing suit and implemented as soon as allowed by the applicable civil procedure statutes in order to possibly catch the business off-guard, Obtaining documentation of  the prior incidents is a key early goal, as well as learning the names of the managers and supervisors who would have been aware of alleged incidents of discrimination. By thoughtful early discovery, the plaintiff's attorney will be in a good position to evaluate the applicability of the continuing violation doctrine to the case, and also to focus later discovery to enhance settlement value or to prepare for trial.

MANAGEMENT PERSPECTIVE
Lengthy gaps in discriminatory events will often defeat continuing violation claims, particularly if management can show it properly investigated and handled each reported incident or those events it learned about from sources other than the employee. The form of discrimination must be the same throughout the period, i.e., unrelated claims of sexual harassment and age discrimination will not be jointly actionable. Adequate documentation which reflects bona fide attempts to remedy a pattern of earlier discrimination will also tend to make later incidents less likely to be viewed as continuous in nature. In the case in focus, management argued that the alleged harassment was too spread out and that they had no notice of any problems before plaintiff brought her case against their restaurant. Plaintiff argued management should have known of the problems from personnel reports.

PRACTICE TIPS-MANAGEMENT
Early intervention to prevent repeated acts of harassment or discrimination is of paramount importance. Due to the changing work environment, with workers coming and going more frequently, a thorough investigation which includes statementizing favorable witnesses will ease the later burden of defending against a continuing violation case. Well documented files without biased, pretextual additions are essential.
After receipt of the claim, close examination of it for prior, possibly untimely incidents is a priority. If it appears a "right to sue" letter and subsequent lawsuit will issue, a discovery plan should be in place by the time the lawsuit is filed. Because the company has possession of the relevant documents, the plaintiff's deposition should be taken very early in order to pin down the story. Many times the authors have encountered unprepared plaintiffs who significantly damage the value of their cases by forgetting about key incidents that could be tied together with the timely incidents.

HISTORY OF THE CONTINUING VIOLATION DOCTRINE
Beginning with King v. Georgia Power Company, 295 F.Supp. 943 (N.D. Ga. 1968,) the courts have extended the filing period for a plaintiff when the effect of a particular practice continued to the present time. Continuing violation theory has also been applied to situations where there was a pattern of discrimination involving different employees and different practices. This changed with the Supreme Court's decision in United Airlines, Inc. v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L.Ed.2d 571 (1977), which held that a present violation within the charge-filing period rather than the mere continuing effect of past discrimination was needed to find a continuing violation. Plaintiff, a stewardess, was discharged for marrying a co-worker, but did not file a claim over the discharge. Later, she rejoined United Airlines without benefit of her previous level of seniority. Justice Stevens first observed that while plaintiff's discharge might constitute important background evidence if a current practice was in issue, it had "no present legal consequences." (Id. at 555) Because she did not allege that United's seniority system treated her differently than other employees, it was found neutral and nondiscriminatory in action, without evidence of a present violation. (Id. at 557-558)
Where a pattern of wage discrimination and disparity based on race existed before Title VII's enactment, and continued afterwards, the Supreme Court found a continuing violation, with each paycheck an actionable wrong. (Bazemore v. Friday, 478 U.S. 385, 395, 106 S.Ct. 3000, 3006, 92 L.Ed.2d 315 (1986))

A SAMPLING OF FEDERAL AND CALIFORNIA CONTINUING VIOLATION CASES
In Accardi v. Superior Court, 17 Cal.App.4th 341, 21 Cal.Rptr.2d 292 (1993) the plaintiff had to deal with a hostile work environment at the Simi Valley Police Department from 1980 through 1989. Several acts were alleged to have taken place from 1989 through 1991. The court observed that the 1989 through 1991 acts might not be actionable for sexual discrimination when viewed in isolation. (Id. at 350) However, plaintiff had alleged that the Simi Valley Police Department had waged a decade long campaign of harassment against her, not wanting her to hold a "man's job." The court noted that seemingly non-discriminatory acts in 1989 through 1991 could have been pretextual. There were no investigations, no suspensions and no terminations of any alleged harassers. On the basis that she might be able to prove that the defendant's actions from 1989 through 1991 were a continuation of prior discriminatory practices and that the later actions were pretextual. the demurrers to her complaint on the statute of limitation were set aside. (Id. at 351) Of course, plaintiff still had to prove at trial that the later acts were a continuation of the hostile work environment to which she had allegedly been subjected from 1980 through 1989.
In Farr v. A. T & T. Technologies Inc., 824 F.2d 1537, 1543, (10th Cir. 1987), reh'g denied, 842 F.2d 253 (10th Cir. 1988) an age discrimination case, the court held that the continuing violation theory can be shown where the company engaged in a plan or practice of discrimination. In Furr, the plaintiffs demonstrated a continuing policy and practice of discrimination beginning before the statutory filing period. The claim was held to be accepted if the employer continued to apply the policy within the filing period, and at least one incident of discrimination occurs during the filing period. (Ibid)
In this context, the Fifth Circuit Court of Appeals has held that a series of related acts must be shown. (Berry v. Board of Supervisors (5th Cir. 1983) 715 F.2d 971, 979, appeal after remand, 783 F.2d 1270, cert. denied 479 U.S. 868, 107 S.Ct. 232 (1987)) Berry v. Board of Supervisors, supra, set forth three factors to ascertain if a series of discriminatory acts are closely related enough to constitute a continuing violation:
"The first is subject matter. Do the alleged acts involve the same  type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring (e.g., a biweekly paycheck) or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?" (Id. at 981)
The principle emerging from the case law is that to constitute a continuing violation, specific incidents of discrimination must continue long enough to amount to a policy or pattern of discrimination against the individual employee. (See Sabree v. United Brotherhood of Carpenters & Joiners Local No. 33, 921 F.2d 396, 401 (Ist Cir. 1990) There is no continuing violation unless there is a substantial relationship between the timely and untimely claims. Mr. Sabree, an African-American, was denied a transfer to Local 33 on a number of occasions. He believed at all times he was being discriminated against on racial grounds. The prior incidents were held time barred, for which he could not receive back pay, as he did not overcome the "permanence" hurdle. (Id. at 402)
Therefore, discrete incidents of discrimination, even similar ones, which are not related to discriminatory mechanisms or policies do not constitute a continuing violation. (Lambert v. Genesee Hosp. (2d Cir. 1993) 10 F.3d 46, 53, cert. denied, ___U.S. ___ 114 S.Ct. 1612, 128 L.Ed.2d 339 (1984)) In Roberts v. Gadsen Memorial Hospital, 835 F.2d 793, 800 (11th Cir.1988) [Amended on rehg, 850 F.2d 1549] two separate denials of promotion, three years apart, by two different supervisors, did not constitute a continuing violation. The Roberts court pointedly observed:
"The continuing violation doctrine does not exist to give a second chance to an employee who allowed a legitimate Title VII claim to lapse. It is only when a substantial nexus exists between a timely filed claim and an otherwise time-barred claim that they may be viewed as constituting a single violation, part of which falls within the limitations period." (Id. at 800)
However, where an employee legitimately does not know she is being discriminated against until a pattern of discriminatory employer behavior is discovered, the continuing violation doctrine will provide relief from the statute of limitations. (See Glass v. Petro-Tex Chemical Corp., 757 F.2d 1554, 1561 (5th Cir. 1985)) Sexual harassment is rarely, if ever, not noticeable, but discriminatory promotion and transfer actions related to the sexual harassment can be very hard to spot.
In Valdez v. City of Los Angeles, 231 Cal.App.3d 1043, 282 Cal.Rptr. 726 (1991) a Hispanic police officer alleged a discriminatory promotional system. He passed a March 1985 written examination and took an oral examination in May 1985. The eligibility list based upon the May 1985 oral examinations had a two-year life-span. The court held that if the oral examination was unlawful and discriminatory, the unlawful discrimination would be of a continuous nature until May 1987, which was five months after Mr. Valdez filed his DFEH complaint. The complaint was not time barred. (Id. at 1053) The complaint arising under FEHA will be timely under that doctrine if any of the discriminatory practices continues into the limitations period. (Ibid)
Watson v. Department of Rehabilitation, 212 Cal.App.3d 1271, 261 Cal.Rptr. 204 (1989) also contains a factual scenario in which the harassment was of a long standing and continuous nature. Initially, the plaintiff filed a charge against the employer in 1978. The harassment continued up until the time she filed a second complaint in 1985. There is no reference to any extensive gap period in which no harassment occurred. Ms. Watson was able to reference a "plethora of actions and conduct commencing from the time she filed her first charge in 1978 and extending to the time of her second charge during which Watson suffered harassment predicated
upon a retaliatory motive The court found this course of conduct to be continuing and allowed her to prevail against a statute of limitations defense. (Id. at 1290) In Regents of University of California v. Superior Court, 33 Cal.App.4th 1710, 39 Cal.Rptr.2d 919 (1995) the court found the plaintiff's claim to be barred by the oneyear statute of limitations. There, a medical school graduate, Dr. Steinsapir, entered a residency program at the University of California, San Diego. An adverse employment decision was communicated to her in April 1992 by a Dr. Moossa to the effect that she would have to repeat her third year of residency. She filed her administrative claim in July 1993 and then filed suit in August 1993. The alleged sexual harassment involving the female physician had occurred in 1989, when Dr. Moossa, a male surgeon, brushed against her breasts. She also alleged that Dr. Moossa was opposed to women becoming surgeons and that this prejudice was behind the April 1992 letter. She then had no contact with the male harasser after receiving the adverse April 1992 letter from him. She alleged no further acts of discrimination after April 1992. On this basis, the court held that Dr. Steinsapir did not come within the continuing violation doctrine exception to the statute of limitations. (Id. at 1720)
In Abrams v. Baylor College of Medicine, 805 F.2d 528 (5th Cir. 1986) the court found a continuing violation when it viewed the overt, continuous practice of excluding Jewish doctors and anesthesiologists from medical teams going to Saudi Arabia. The Fifth Circuit did stress that the continuing violation doctrine must be "guardedly employed," as a "quiescent discriminatory policy" cannot constitute a continuing violation. (Id. at 534) However, the policy had been applied to the plaintiffs within the charge-filing period and the school had obscured the policy's existence behind the smoke screen of a "visa problem." (Ibid)
To be timely, a complaint must be filed upon an actual incident involving application of the discriminatory policy which affects the plaintiff within the limitations period. In Domingo v. New England Fish Company, 727 F.2d 1429, modified on other grounds, 742 F.2d 520 (9th Cir. 1984) recovery was denied to certain plaintiffs, for although a continuing violation occurred in hiring and promotions as to many employees, they could not demonstrate actual effects on themselves.
"Hostile environment" sexual harassment cases are especially well suited to application of the continuing violation doctrine, for a series of acts is prerequisite to that cause of action. Waltman v. International Paper Co., 875 F.2d 468 (5th Cir. 1989) illustrates this well. The plaintiff was offensively touched. Sexually explicit broadcasts about her were made. She was held and also shot in the crotch with an air hose. Walls and lockers contained explicit graffiti, and she was threatened with having a breast cut off and shoved down her throat. These incidents involved many, many different co-workers and supervisors over nearly three years.
The district court granted partial summary judgment for the employer on the grounds many of the incidents were time barred. Plaintiff appealed. The Fifth Circuit reversed, finding no need to prove a conspiracy, no need to show a company policy if a series of discriminatory acts occur, and no requirement that each incident involve the same harasser. (Id. at 475.) Time lapses are not necessarily fatal if sufficient continuity is shown. Further, based on Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) an environment that is hostile during the period in question supports recovery. (Waltman, supra at 475-476) Finally, applying the Berry factors, permanence in the hostile environment arena is more likely to be found from a denied promotion than from a discharge, as the latter action ends the harassment. (Id. at 476)
The continuing violation doctrine may even play a role in "quid pro quo" sexual harassment cases. For example, in Weide v. Mass Transit Admin. 628 F.Supp. 247 (D. Md. 1985) the plaintiff rejected a coemployee's sexual advances in 1981 and received a negative evaluation from him in November 1983 when he was her newly assigned supervisor. Her January 1984 complaint was held timely because she did not perceive the harassment as actionable until the poor evaluation was issued. (Id. at 249)
In Green v. Los Angeles Superintendent of Schools, 883 F-2d 1472, 1475-1476 (9th Cir.1989) post-charge violations were not made a part of the original complaint on the basis of insufficient relationship to the earlier charges. Ms. Green made an initial charge of sexual harassment. Later, she attempted to bring in post charge claims of denial of medical leave and benefits, poor recommendations, and discharge. She was not allowed to litigate the later charges.
On the other hand, the plaintiff in McKinley v. Dole, 765 F.2d 1129 (D.C. Cir. 1985) was able to tie untimely charges of sexual harassment together with a physical assault by her supervisor which was within the limitations period. A pattern of sexual harassment was found, and even though the assault was not explicitly sexual, Title VII proscribes harassment based on sex irrespective of the existence of sexual demands or innuendos. (Id. at 1139-1140) sexual predators transferred to one restaurant was of great concern. The incidents complained of consisted entirely of sexual harassment. [No job status discrimination could be shown because the plaintiff had refused a number of offered promotions.] However, the 1991 incidents by the supervisor were found to be separated from the later incidents by a fourteen month gap. Most importantly, management's punctual investigation which resulted in a prompt termination evidenced the lack of a concerted pattern of discrimination by management, and therefore distinguished the case at bar from the cited cases. As to the post-charge filing incidents, plaintiff was found not to have exhausted her administrative remedies and also found not to have made a sufficient offer of proof that management had ratified and authorized the latter incidents.
This ruling significantly streamlined the trial and prevented the jury from learning of many prior and subsequent incidents that were not part of a pattern of continuing harassment and discrimination. The court found the prior and subsequent incidents irrelevant as they did not demonstrate a years-long vendetta against plaintiff in an attempt to force her to quit.

CONCLUSION
When it can be proven, a continuing violation is a powerful tool for the employee to both avoid the bar of the statute of limitations and to enhance recovery based on a longer-lasting and more severe course of harassment and discrimination. Each case is different and a multiplicity of factors must be examined before the doctrine can properly be applied.

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