The trial court granted summary judgment in favor of an employer and an employee-supervisor on the ground the one-year statute of limitations had run against a former employee's claims of sexual harassment and retaliation. It is clear to us that there would be a triable issue of material fact whether the former employee was sexually harassed. But it is equally clear the statute of limitations ran on her claims. The last act of harassment or retaliation occurred in January 2007, and the administrative complaint was not filed until May 2008, long after the applicable statute ran.
Accordingly, we must affirm the judgment entered in this case. The undisputed material facts establish that (1) Irene Trovato failed to initiate her case against her former employer, Beckman Coulter, Inc. (Beckman), and her former supervisor, Michael Allyn, within the statutory time limits, and (2) the continuing violation doctrine does not save Trovato's untimely action because the unlawful conduct stopped no later than January 31, 2007. Additionally, we conclude the trial court properly denied Trovato's motion for a new trial, because the evidence Trovato claimed was newly discovered would not have produced a different result.
Trovato began working for Beckman as a sales representative in January 2006. Allyn was Trovato's direct supervisor for part of her employment at
On May 8, 2008, Trovato filed an administrative complaint against Beckman with California's Department of Fair Employment and Housing (DFEH). Trovato sued Beckman and Allyn on May 22, 2008. Trovato's complaint asserted causes of action for harassment, in violation of Government Code section 12940, subdivision (j), and retaliation, in violation of section 12940, subdivision (h).
The trial court granted the motion for summary judgment filed by Beckman and Allyn. The court denied Trovato's motion for a new trial. Trovato timely appealed.
We review orders granting summary judgment de novo. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 [107 Cal.Rptr.2d 617, 23 P.3d 1143]; Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 35 [123 Cal.Rptr.2d 555].) Summary judgment "provide[s] courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844 [107 Cal.Rptr.2d 841, 24 P.3d 493].) A motion for summary judgment or summary adjudication is properly granted if all the papers submitted establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) A defendant has the initial burden to show that undisputed facts support summary judgment based on the application of an affirmative defense. (Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484-1485 [71 Cal.Rptr.3d 714].)
To establish the triggering of the statute of limitations on January 31, 2007, Beckman and Allyn offered in evidence Trovato's deposition testimony that
In support of her opposition to the motion for summary judgment, Trovato submitted a declaration dated July 30, 2009, in which she stated: "From January 2007 through May 22, 2007, Allyn is not my manager at Beckman, but he is still harassing me." Trovato also declared that she had contact with Allyn after January 31, 2007, and Allyn was "running ... roughshod" and "didn't have any boundaries." In her declaration, Trovato also stated that although Allyn was no longer her manager after January 31, 2007, she "would be running into Allyn for the rest of my Beckman career. I thought that it (harassment, etc.) was going to last forever. It was beneficial (for me) to be working with Bill (Russell), but I did not feel protected (from Allyn)."
Trovato, however, did not identify any acts of harassment or retaliation occurring after January 31, 2007.
"Q ... Was there any subsequent incident of alleged sexual harassment involving Mr. Allyn [after January 31, 2007]?
"A No, I left just a few months later in May. [¶] ... [¶]
"Q ... [A]s you sit here right now, you don't specifically recall any contact with Mr. Allyn after your February of 2007 evaluation by him.
"A No.
"Q Is that a correct statement?
Trovato further testified:
"Q Do you have any specific recollection of any dealings or interaction with Mr. Allyn after January 31, 2007?
"A No, not—not at this time, no.
"Q Okay. And you've looked at your day planner that you kept for that period of time, and you didn't see any indication or evidence of interaction with Mr. Allyn during that period of time; correct?
"A That's correct. [¶] ... [¶]
"Q ... [¶] After January 31, 2007, that last incident of harassment or retaliation at your performance review, do you have any specific recollection of any harassment or retaliation that Mr. Allyn engaged in from that point, January 31, 2007, up until the time you left Beckman?
"A Not that I recall."
The conclusory statements in Trovato's declaration are not sufficient to raise a triable issue of material fact on the statute of limitations issue, and she cannot defeat the grant of summary judgment by contradicting her sworn deposition testimony on material points in a later-filed declaration. (Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12 [64 Cal.Rptr.3d 803, 165 P.3d 581]; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22 [112 Cal.Rptr. 786, 520 P.2d 10]; Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087 [109 Cal.Rptr.3d 371].)
Trovato did not offer any admissible evidence that, after January 31, 2007, Allyn harassed her or that she suffered any adverse employment actions, much less that such conduct was causally linked to her reporting of Allyn's sexual harassment in the summer of 2006.
In Richards, the California Supreme Court adopted a three-prong test to determine whether the continuing violation doctrine applies to harassment claims: "[A]n employer's persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment targeting a disabled employee, is a continuing violation if the employer's unlawful actions are (1) sufficiently similar in kind—recognizing, as this case illustrates, that similar kinds of unlawful employer conduct, such as acts of harassment or failures to reasonably accommodate disability, may take a number of different forms [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. [Citation.]" (Richards, supra, 26 Cal.4th at p. 823.) In Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1059-1060 [32 Cal.Rptr.3d 436, 116 P.3d 1123] (Yanowitz), the California Supreme Court made clear that the continuing violation doctrine may apply to a claim for retaliation.
Beckman and Allyn argue that the continuing violation doctrine does not apply in this case because no act of harassment or retaliation occurred during the limitations period, i.e., between February 1, 2007, and January 31, 2008. Beckman and Allyn are correct. "A continuing violation exists if ... the conduct occurring within the limitations period is similar in kind to the conduct that falls outside the period...." (Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714, 721 [85 Cal.Rptr.3d 705], italics added; see Yanowitz, supra, 36 Cal.4th at p. 1056; Richards, supra, 26 Cal.4th at p. 802; National Railroad Passenger Corporation v. Morgan (2002) 536 U.S. 101, 117 [153 L.Ed.2d 106, 122 S.Ct. 2061] ["Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability."].)
Trovato counters by arguing that while discrimination and harassment are separate types of unlawful conduct under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.), a single act can constitute both discrimination and harassment in violation of Government Code section 12940, subdivisions (a) and (j)(1), and the two separate claims may be supported by the same or overlapping evidence. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 708-709 [101 Cal.Rptr.3d 773, 219 P.3d 749] (Roby).)
Trovato also argues that she still reported to Allyn after January 31, 2007, until she resigned in May 2007, and that this assignment alone—without any other evidence—was sufficient to constitute harassment or retaliation. There is no authority for this argument, and its acceptance would extend the statute of limitations indefinitely.
With respect to the first cause of action for harassment and the second cause of action for retaliation, we conclude the trial court did not err in determining the causes of action were barred by the statute of limitations, and were not saved by the continuing violation doctrine.
The judgment and postjudgment order are affirmed. Respondents to recover costs on appeal.
Rylaarsdam, Acting P. J., and Moore, J., concurred.