Jay Brome began his employment with the California Highway Patrol (CHP) in 1996. During his nearly 20-year career, other officers subjected Brome, who was openly gay, to derogatory, homophobic comments, singled him out for pranks, repeatedly defaced his mailbox and refused to provide him with backup assistance during enforcement stops in the field.
Brome eventually transferred CHP offices seeking a better work environment, but the offensive comments about his sexual orientation continued. Officers at Brome’s new office also frequently refused to provide Brome with backup assistance during enforcement stops, including high-risk situations that should be handled by at least two officers. Brome was the only officer who did not receive backup. Further, when Brome won an officer of the year award, the CHP never displayed his photograph, which was a break from practice.
Through 2014, Brome continued to complain to his supervisors. They told him they would look into it, but the problems continued, and Brome believed management refused to do anything about it. As a result, Brome feared for his life during enforcement stops, experienced headaches, muscle pain, stomach issues, anxiety, and stress, and became suicidal. In January 2015, Brome went on medical leave and filed a workers’ compensation claim based on work-related stress.
After Brome took leave, his captain sent him a letter stating that he hoped they could work together to resolve Brome’s work-related issues. Brome’s workers’ compensation claim was eventually resolved in his favor, and on February 29, 2016, Brome took industrial disability retirement.
On September 15, 2016, Brome filed a complaint with the Department of Fair Employment and House (DFEH) asserting discrimination and harassment based on his sexual orientation and other claims under the Fair Employment and Housing Act (FEHA). The next day, Brome filed a civil lawsuit. The CHP sought to dismiss the lawsuit as untimely. Under the FEHA at the time of the lawsuit, an employee’s DFEH complaint must have been filed within one year of the alleged discriminatory or harassing conduct. While the crux of Brome’s claims occurred before his medical leave in January 2015, Brome did not file his administrative complaint until September 15, 2016. Accordingly, the CHP argued that Brome could only sue based on acts occurring on or after September 15, 2015. While Brome argued that various exceptions to the one-year deadline applied, the trial court ultimately dismissed Brome’s lawsuit. Brome appealed.
The court of appeal considered three exceptions that could extend the one-year deadline: equitable tolling, continuing violation, and constructive discharge.
First, the court determined that Brome’s workers’ compensation claim could equitably toll the one-year deadline for filing his DFEH complaint. The equitable tolling doctrine suspends a statute of limitations to ensure fairness. To use equitable tolling, the employee has to prove: (1) timely notice; (2) lack of prejudice to the employer; and (3) his or her own good faith conduct. The court concluded that Brome could establish all of the elements. Brome’s workers’ compensation claim put the CHP on notice of his potential discrimination claims because it had to investigate the circumstances that caused him work-related stress. The court said that a reasonable jury could not find that applying the equitable tolling doctrine would prejudice the CHP. Finally, the court noted that Brome exhibited good faith and reasonable conduct in waiting to file his complaint until after the resolution of his workers’ compensation claim.
Second, the court determined that the statute of limitations could be extended as a continuing violation. That doctrine allows liability for conduct occurring outside the statute of limitations if the conduct is sufficiently connected to conduct within the limitations period. To establish a continuing violation, an employee must show that the employer’s actions are: (1) sufficiently similar in kind; (2) have occurred with reasonable frequency; and (3) have not acquired a degree of permanence. The homophonic conduct against Brome was ongoing and very common, and a jury could find that it was reasonable for Brome to seek a fresh start at a different office and request assistance from his supervisors there once similar problems arose. Further, Brome’s supervisors consistently told him they would look into and address his concerns.
Finally, the court concluded that the constructive discharge theory could possibly apply. To establish constructive discharge, an employee must show that working conditions were so intolerable that a reasonable employee would be forced to resign. The court found that Brome raised a triable issue as to whether his working conditions were so bad a reasonable employee would have resigned. For example, Brome was routinely forced to respond to high-risk situations alone.
For these reasons, the court held that the trial court erred in dismissing Brome’s lawsuit. The court remanded the case back to the trial court for further proceedings.
Brome v. California Highway Patrol, 44 Cal. App. 5th 786 (Cal. Ct. App. 2020).
Note:
Effective January 1, 2020, the statute of limitations to file a DFEH claim has been extended from 1 to 3 years. Employers have a legal duty to promptly investigate claims of discrimination and harassment to not only limit liability but to provide a safe and productive workplace for all employees.
