Dismissal of Race Discrimination Lawsuit Over Blown Statute of Limitations Affirmed on Appeal

Willie Moffett claimed he was the victim of race harassment, retaliation and discrimination while working for St. Vincent dePaul Society. He filed a FEHA charge, then requested a right to sue letter on March 24, 2014. Three days later (March 27, 2014), FEHA issued a right to sue letter, giving Moffett one year to file his civil lawsuit. Moffett filed his civil lawsuit one year and three days later. Defendants moved for summary judgment based upon the statute of limitations (Government Code §12965(b)).

In opposition, Moffett argued his attorney attempted to file a second FEHA charge with new facts alleging a continuing violation on March 27, 2015, using the FEHA electronic portal. Plaintiff never produced this new FEHA charge during discovery. After the court issued a tentative ruling granting summary judgment, plaintiff presented for the first time at the hearing an incomplete document purporting to be a FEHA right to sue letter, lacking (among other things) names and a date.

At defendants’ request, the court allowed limited discovery from the DFEH on the newly-produced right to sue letter. Those depositions revealed no problem with the DFEH portal on or around March 27, 2015 (as claimed by Moffett’s attorney), and that the right to sue letter presented in court was actually a new document, created and sent to Moffett’s counsel on August 31, 2016 (the day before the summary judgment hearing). Defendants argued Moffett’s newly-created right to sue letter was inadmissible, and created too late.

The trial court granted summary judgment and the appellate court affirmed, holding Moffett filed his lawsuit more than one year after the first right to sue notice, and finding uncontroverted evidence established the DFEH had generated a second, right to sue letter on August 31, 2016, long after Moffett filed suit. (Moffett v. St. Vincent de Paul Society, A150707, March 1, 2019.)

Appellate specialist Lori Sebransky and employment law partner Peter Glaessner teamed up for the successful outcome.