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Cunningham v. City of Los Angeles2/15/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
INTRODUCTION
Plaintiff and appellant Hector Cunningham ("plaintiff") filed this action on July 8, 1999 against the City of Los Angeles Department of Water and Power (the "DWP" or "defendant"), alleging two causes of action: (1) unlawful employment practices in violation of the California Fair Employment and Housing Act ("FEHA") (Gov. Code, ยง 12900 et seq.); and (2) discrimination and harassment in violation of public policy. Plaintiff appeals the trial court's judgment granting defendant's motion for summary judgment on the basis that plaintiff's claims were barred by the statute of limitations. We affirm because plaintiff's claims are barred by the statute of limitations.
PROCEDURAL AND FACTUAL BACKGROUND
1. Introduction
In July of 1986, plaintiff began his employment with the DWP as a sheet metal worker ("SMW"), a position involving assembly and repair of sheet metal parts and requiring the ability to lift 50-70 pounds, to climb and balance under precarious conditions, and to stoop, kneel, and crawl while performing tasks.
Plaintiff claims that from April 1994 through August 1997, defendant discriminated against him on the basis of physical disability by failing to accommodate him as a SMW and forcing him to accept a position as a Garage Services Attendant ("GSA"), which paid $8 an hour less than the SMW position. Plaintiff also claims that in August 1997, following his reinstatement to the position of SMW, defendant retaliated against him by refusing to pay him back pay for the time period from April 1994 through August 1997, while he was working as a GSA.
Because plaintiff, pursuant to the "continuing violations" doctrine, seeks recovery for alleged misconduct occurring before the statutory period of limitations, we divide our statement of facts into two time periods: (1) conduct occurring before the statutory period of limitations; and (2) conduct occurring during the statutory period of limitations.
2. Time Period Before July 8, 1997, the Date When the Statute of Limitations Commenced on Plaintiff's Claims
Between May 19, 1988, and returning to duty on July 11, 1991 as a SMW, plaintiff sustained three work-related injuries to his back and upper torso for which he was either restricted from heavy lifting or placed on limited duty.
By early 1992, plaintiff began to experience difficulties performing his duties as a SMW. On April 30, 1992, plaintiff was examined by a workers' compensation physician who found plaintiff's condition to be permanent and stationary, imposed medical restrictions against heavy lifting and repetitive bending or stooping, and recommended vocational training.
Beginning in May of 1992 until July 14, 1992, plaintiff was placed on a modified work program. During this time, plaintiff, however, repeatedly complained to his supervisor of frequent pain and that he could not remain stationary for extended periods of time.
On July 13, 1992, the DWP sent a memorandum to plaintiff asking whether plaintiff was aware of any accommodations, special equipment, modified work plan, or assistance that the DWP could provide, which would allow him to perform substantially all of his duties as a SMW. On July 14, 1992, plaintiff responded in writing: "No, to the best of my knowledge."
Fr
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