An openly gay California Highway Patrol (CHP) officer, Jay Brome, brought suit against his employer after enduring twenty years of harassment and discrimination. The trial court dismissed his claims on the grounds that they were not filed within the statute of limitations. The California Court of Appeal for the First District reversed the trial court’s ruling in a unanimous opinion, holding that equitable tolling could extend Mr. Brome’s statute of limitations. (Brome v. California Highway Patrol, A154612, filed January 28, 2020.)
Mr. Brome began working for the CHP in San Francisco in 1996. He was subjected to homophobic comments and pervasive discrimination and harassment for over ten years. Rather than filing a lawsuit, Mr. Brome requested a transfer in the hope that he would be placed in a better work environment.
In 2008, the CHP transferred Mr. Brome to the Solano County office, but unfortunately, the harassment continued. Mr. Brome’s co-workers frequently refused to provide Mr. Brome with backup assistance during enforcement stops, which was not only against protocol, but put his life in danger. They also made derogatory and homophobic comments. When Mr. Brome won the Solano Area Officer of the Year Award in 2013, the CHP never displayed his photograph, choosing instead to leave the winner of the previous year’s award on display through 2014.
The harassment in the workplace took a toll on Mr. Brome’s health. He suffered from headaches, muscle pain, stomach issues, anxiety, stress and suicidal ideation, and feared for his life. In January 2015, Mr. Brome went out on medical leave and filed a worker’s compensation claim. His worker’s compensation claim resolved in his favor in October 2015. In February 2016, Mr. Brome went out on disability and left the CHP.
In September 2016, Mr. Brome filed an administrative complaint with the Department of Fair Employment and Housing (DFEH) alleging harassment, discrimination, failure to prevent harassment and discrimination, and retaliation. The next day he filed suit. The CHP sought summary judgment on the grounds that Mr. Brome failed to file his DFEH complaint within a year of the challenged actions, which largely occurred prior to January 2015. Mr. Brome argued that his one year filing deadline should be suspended during the pendency of his worker’s compensation claim. He also relied on the continuing violation doctrine which would hold the CHP liable for acts occurring before the limitations period.
The trial court dismissed Mr. Brome’s claims for being untimely. The appellate court reversed.
The First Appellate District reasoned that the equitable tolling doctrine should apply in Mr. Brome’s case. The doctrine “operates to ‘suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.’” A DFEH administrative claim can be tolled if a plaintiff is able to establish three elements: 1) timely notice; 2) a lack of prejudice to the defendant; and 3) reasonable good faith conduct on the part of the plaintiff. The appellate court determined that Mr. Brome was able to satisfy all three elements. By filing his worker’s compensation claim, he put the CHP on notice of his potential discrimination claim. The CHP’s investigation into Mr. Brome’s worker’s compensation claim “should have preserved evidence” about his discrimination claim. Because of this, the Court reasoned that the CHP would not be prejudiced. And finally, Mr. Brome was suicidal and struggling to function while his worker’s compensation was pending. A reasonable trier of fact could conclude that Mr. Brome had acted in good faith and, therefore, met the elements for equitable tolling.
Mr. Brome also argued that the CHP should be liable for unlawful conduct that was directed at him outside the statute of limitations under the continuing violation doctrine. “Allegations of a pattern of reasonably frequent and similar acts may, in a given case, justify treating the acts as an indivisible course of conduct actionable in its entirety.” In this case, the Court could not conclude that the continuing violation doctrine was inapplicable as a matter of law.
Finally, Mr. Brome argued that the trial court erred when it held that he was unable to establish a claim for constructive termination as a matter of law. To establish a constructive discharge claim, a plaintiff must demonstrate that working conditions were so intolerable “that a reasonable employee would be forced to resign and that the employer either created or knowingly permitted those conditions” and realized that a reasonable employee under such circumstances would resign. When viewed as a whole, the record could support a conclusion that Mr. Brome’s working conditions were objectively so intolerable that a reasonable person would be forced to resign.
If you feel that you have been discriminated against or harassed in the workplace, please feel free to call Hunter Pyle Law for a free consultation at (510)-444-4400 or inquire@hunterpylelaw.com.