47 Cal.App.5th 532
Cal. Ct. App.2020Background
- Ducksworth and Pollock were long‑term employees leased to Tri‑Modal by Scotts and Pacific (staffing/PEO entities that issued paychecks and handled payroll/benefits but provided personnel only to Tri‑Modal).
- Plaintiffs allege Tri‑Modal denied promotions because of race; Pollock additionally alleges quid pro quo sexual harassment by Tri‑Modal EVP Mike Kelso after she rejected his sexual demands.
- Scotts and Pacific moved for summary judgment asserting they had no authority, input, or decisionmaking power over Tri‑Modal promotion decisions; the trial court granted summary judgment for the staffing agencies.
- Kelso moved for summary judgment on statute‑of‑limitations grounds, relying on a declaration from Tri‑Modal VP Timothy Mullaney stating dates (or absence) of five contested promotions; the trial court admitted the declaration over Pollock’s hearsay objection and granted summary judgment for Kelso.
- Key timeline: Pollock filed a DFEH complaint on April 18, 2018 (so the one‑year limitations lookback cutoff is April 18, 2017); one contested promotion (Leticia Gonzalez) was offered/accepted in March 2017 but did not take effect until May 1, 2017 — the choice of trigger date was dispositive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Liability of staffing agencies for failure to promote/discrimination | Staffing agencies are contractually connected and their policies/contacts (handbook, Scott attendance at meeting) support liability | Scotts/Pacific had no authority, input, or role in Tri‑Modal promotion decisions (undisputed Fact 16) | Affirmed for defendants: Bradley precedent requires staffing agency liability only if agency controlled relevant terms; here Tri‑Modal alone made promotion decisions |
| Admissibility of Mullaney declaration (hearsay) | Mullaney’s statements about promotions derive from out‑of‑court personnel files and lack business‑records foundation, so inadmissible hearsay | Mullaney had personal knowledge as Tri‑Modal VP of operations and access to files; trial court reasonably credited his declaration | Affirmed: abuse‑of‑discretion review; trial court did not abuse discretion in overruling hearsay objection |
| Accrual date for statute of limitations on failure‑to‑promote claim | Limitations should run when promoted employee actually began the new role (May 1, 2017), making claim timely | Limitations run when employer offers and the employee accepts the promotion (March 2017) — the alleged adverse act "occurred" then | Held for defendants: statutory "occurred" means the denial/offering decision date (March 2017); Pollock’s DFEH charge filed after one‑year cutoff so claim barred |
Key Cases Cited
- Bradley v. Dept. of Corrections & Rehabilitation, 158 Cal.App.4th 1612 (2008) (staffing/temporary agency not liable where employer alone controlled the terms/decisions at issue)
- Reid v. Google, Inc., 50 Cal.4th 512 (2010) (discusses standard of review for evidentiary rulings on summary judgment motions)
- Romano v. Rockwell Internat., Inc., 14 Cal.4th 479 (1996) ("discharge" accrues when employee is off payroll; distinguished as inapposite to failure‑to‑promote accrual here)
- Mathieu v. Norrell Corp., 115 Cal.App.4th 1174 (2004) (temporary employment agency may be liable when employee is required to report workplace problems to the agency)