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Table of Contents    Cover    MCLE Test

MCLE Article and Self-Assessment Test #52
Finishing The Job



Before accepting a wrongful termination case, plaintiff attorneys need to carefully consider the financial and legal ramifications 


BY Charles J. Greaves 

Charles J. Greaves is a partner with Hahn & Hahn in Pasadena. He generally represents plaintiffs in business, tort, and employment litigation. 

Rare today is the plaintiff's attorney who has not been consulted by a recently terminated friend, relative, or client and asked to evaluate that person's employment-related claim. For those with little or no prior experience in the field, analyzing a plaintiff's employment matter can be daunting. While the subject of employment law is covered widely and well in a variety of publications and continuing legal education programs, most are presented from the defense perspective. The recent proliferation of employment-related litigation has spawned a cottage industry among defense counsel devoted to educating their colleagues and their employer-clients in the avoidance and defeat of employment claims. Relatively few resources have been available to the plaintiff's practitioner, and fewer still address the nuts-and-bolts of the undertaking. 

There are today, without question, too many employment cases having too little merit. Whether through avarice or ignorance, terminated employees suing their employers are suffering summary judgments and defense verdicts in unprecedented numbers. For plaintiff's counsel, judicious case evaluation and strategy at the outset of the representation make the difference between a successful employment litigation practice and continual disappointment. As with all good plaintiff's cases, a desirable employment matter must have the elements of liability, damages, and collectibility. As to liability, "at will" employment is the rule in California,[1] and viable claims arising from termination, demotion, or other disruption of the employer-employee relationship are the exception. No matter how unfair, arbitrary, or blatantly pretextual the termination or other employment-related decision at issue might appear, unless the employer's conduct falls within a recognized exception to the statutory presumption of at-will employment, usually no claim against the employer will lie. The three most commonly encountered exceptions to the at-will employment rule are: 

  • The existence of an express or implied contract to terminate or demote only for cause.      
  • State and federal statutes prohibiting employment discrimination.      
  • The employer's violation of some fundamental public policy in the termination or other employment-related decision.
In determining whether there might exist an implied contract to terminate[2] or to demote[3] only for cause, rather than at the unfettered discretion of the employer, plaintiff's counsel should look to the duration of the employment; the employee's history of promotions, salary increases, bonuses, stock options and other pecuniary benefits; positive annual performance appraisals; assurances of continuing employment made by management; and, perhaps most important of all, personnel policies—both written and actual—delineating when and under what circumstances employment may be changed or terminated.[4] Prospective clients should be encouraged to bring to the initial meeting copies of both the employer's written personnel policies and the employee's personnel file—which, under California law, should be available even to a terminated employee.[5] While sophisticated employers invariably include at-will language in their written personnel policies, the mere presence of an at-will provision, unless part of an integrated contract with the employee,[6] is not necessarily fatal to a claim for breach of implied contract.[7] However, these can be very difficult cases to prove, and therefore should be avoided, in the absence of both a long-term employment relationship and some other tangible indicia of a contractual relationship.

More promising are tort claims for employment discrimination in violation of a state or federal statute, or for wrongful termination due to a status or conduct protected by public policy. The two concepts often overlap since, in order to be cognizable, a claim for wrongful termination in contravention of public policy must be based upon a fundamental policy that finds expression in a statutory or constitutional provision.[8] Many state and federal statutory schemes that limit an employer's right to terminate employment arbitrarily both articulate a public policy against discrimination in employment and provide a remedy for discriminatory employer conduct. 

The federal statutes that most commonly give rise to employment discrimination claims include Title VII of the Civil Rights Act of 1964 [9] (prohibiting discrimination based upon race, religion, color, sex, or national origin), the Age Discrimination in Employment Act of 1967 (ADEA)[10] (prohibiting discrimination against persons over 40), and the Americans with Disabilities Act of 1990 (ADA)[11] (prohibiting discrimination against the disabled). The California statutory provision most frequently relied upon to support a claim of employment discrimination is the Fair Employment and Housing Act (FEHA),[12] which prohibits harassment or discrimination based upon race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age. 

The overlap between a fundamental public policy and its statutory expression often exposes an employer subject to the anti-discrimination statutes to both statutory and common law liabilities as the result of the same tortious conduct. Thus, for example, a victim of sex or race discrimination generally may sue both for statutory violations under Title VII and the FEHA, and for common law violations of the public policies expressed in those statutes. A notable exception to this principle of concurrent liability is the refusal of California courts, at least for now, to recognize a public policy against age discrimination separate and apart from the prohibition embodied in the FEHA.[13] 

Not all employers, however, are subject to the state and federal anti-discrimination statutes. Title VII, for example, applies only to employers engaged in an industry affecting commerce and having employment relationships with 15 or more individuals for each working day in 20 or more weeks during the year in question.[14] The ADEA applies only to employers engaged in interstate transactions that have 20 or more employees. The ADA now applies only to employers with 15 or more employees. The anti-discrimination provisions of the FEHA apply only to California employers with 5 or more employees. However, even if a small or otherwise exempt employer is not subject to these antidiscrimination statutes, a common law claim for wrongful termination may still lie under the California Constitution,[15] Article I, Section 8, which proscribes discrimination in employment on the basis of sex, race, creed, color, or national or ethnic origin—but not age. 

If the employer's conduct breaches an express or implied contract, or tortiously violates a statute or other fundamental public policy, then the next step in the intake analysis is to determine whether and to what extent damages are recoverable. An employee who proves that the employer's termination, demotion, or other employment-related decision or conduct violated an express or implied contract may only recover contract damages[16] such as lost past wages and benefits (back pay), and the present value of lost future wages and benefits (front pay). Furthermore, the employee has an affirmative, ongoing obligation to mitigate his or her damages by making a reasonable effort to find and retain other, comparable employment,[17] an obligation that will typically diminish or eliminate further back pay and any front pay damages altogether. Also, an employer can limit its exposure to further back pay and front pay damages simply by tendering to the employee an unconditional offer of reinstatement to the position from which the employee was terminated.[18] For these reasons, pure contract actions are rarely good candidates for contingency fee representation. 

In contrast, a broader range of remedies is available in cases of employment discrimination or wrongful termination in violation of public policy. Statutory remedies under FEHA include not only back pay and front pay special damages, but general damages for personal injuries and emotional distress, attorneys' fees, and, in appropriate circumstances, punitive damages.[19] Similar remedies are available under both Title VII and the ADA, but general and punitive damages are recoverable only if the employer has engaged in a discriminatory practice with malice or reckless indifference to the employee's federally protected rights—and, even then, the total general and punitive damage award is limited, depending upon the size of the employer's work force.[20] Thus, for example, the maximum general and punitive damage award in an action under Title VII or the ADA is $50,000 against employers with less than 100 employees, while the maximum award against employers with more than 500 employees is $300,000. Although general damages are not available under the ADEA, a victim of age discrimination in violation of the ADEA may recover attorneys' fees, as well as liquidated damages equal to the amount of his or her special damages if the employer's conduct is found to be willful.[21] A common law action for wrongful termination in violation of public policy entitles the successful plaintiff to damages traditionally available in tort actions, including back pay, front pay, general damages, and punitive damages, but not attorneys' fees.[22] 

The value of a statutory or public policy case depends largely upon the plaintiff and the circumstances surrounding the plaintiff's termination. The plaintiff's pre-termination compensation, anticipated future compensation, working life expectancy, and prospects for reemployment will govern the case's potential for economic damages, while the employee's performance history, credibility and character, as well as the nature of the employer's conduct and its emotional or physiological impact upon the employee, will determine the case's non-economic and punitive damages potential. While each case is unique, those involving tortious wrongful termination in violation of public policy or employment discrimination often have tremendous jury appeal since, among other reasons, most jurors are themselves employees who will have little difficulty empathizing with the plight of a plaintiff who has suffered discriminatory or other prohibited treatment at the hands of his or her employer. 

The penultimate step in the intake analysis is to assess the solvency of the prospective employer-defendant. Even cases of clear liability with substantial damages are best avoided if collectibility is problematic. Commercial general liability insurance policies do not usually provide coverage for wrongful termination claims, both because Insurance Code Section 533 precludes liability for conduct that is willful and because most policies today contain express exclusions for employment-related practices.[23] Nor will coverage or a defense usually lie under the employer's workers' compensation policy.[24] Although "employer's practices liability" policies that expressly insure against wrongful termination claims have grown in popularity, it is safest to assume in the absence of information to the contrary that the plaintiff's claim will be uninsured. Counsel therefore should look to the financial strength of the employer in determining whether to proceed with the representation. 

After analyzing the claim for liability, damages, and collectibility, the potential client must be scrutinized before counsel commits to representation. If the client has engaged in any pretermination conduct, such as resume fraud, that would have merited discharge had it been discovered by the employer, then the employee's available remedies may be sharply circumscribed or barred altogether under the "after-acquired evidence" doctrine.[25] Counsel must ascertain from the client whether any such evidence might possibly come to light during the course of the litigation. The client must be prepared to hear his or her name taken in vain by former supervisors and coworkers; to countenance unflattering assessments of the client's performance, intelligence, and abilities; and, to the extent that emotional distress damages are sought, to have the client's personal, medical, and mental health histories probed in exacting detail. If plaintiff's counsel intends to proceed under a statute that provides for the recovery of attorneys' fees to the prevailing party, the client must be informed of the risk that, upon entry of a defense judgment or verdict, the client may be liable not only for the costs incurred on both sides but also for the employer's attorneys' fees.[26] Counsel needs to ascertain in advance whether the client is committed, despite these obstacles, to pursuing the litigation through verdict. 

In most cases, it takes more than a sympathetic client and a filing fee to begin a plaintiff's employment lawsuit. "Exhaustion of administrative remedies" is a precondition to commencing an action under Title VII, the ADA, the ADEA, or the FEHA.[27] The administrative agency charged with processing claims of discrimination in violation of the FEHA is the California Department of Fair Employment and Housing (DFEH), and the federal agency charged with processing claims of discrimination under Title VII, the ADEA, and the ADA is the Equal Employment Opportunity Commission (EEOC). Exhaustion of administrative remedies consists of filing a written complaint or charge with each respective agency and obtaining from the agency a form right-to-sue letter. A DFEH charge must be filed within one year from the last date on which the discriminatory conduct is alleged to have occurred.[28] An EEOC charge must be filed within 180 days of the discriminatory conduct but, in states (such as California) that have an analogous administrative agency, the charge is timely if filed within 300 days.[29] These deadlines may be tolled under the "continuing violations doctrine" where the employee can demonstrate a series of related acts, one or more of which fall within the limitations period, or maintenance by the employer of a continuing policy and practice of discrimination that operated at least in part within the limitations period.[30] 

An action for employment discrimination under the FEHA must be filed within one year after issuance of a right-to-sue letter from the DFEH.[31] An action for employment discrimination under Title VII, the ADEA, or the ADA must be filed within 90 days after receipt of a right-to-sue letter from the EEOC.[32] However, an employee may not commence a civil action under the ADEA until at least 60 days after the date a charge of discrimination is filed with the EEOC.[33] There is no "exhaustion" requirement for a common law claim for wrongful termination in violation of public policy, to which a one-year statute of limitation applies.[34] The one-year period begins to run when the employee is actually discharged, not when the employer gives notice of its intention to terminate the employment.[35] 

Tax considerations can play a part both in the decision to undertake representation and in the manner in which the plaintiff's claims are pled. While the proceeds of any settlement or judgment in favor of the employee are generally deductible by the employer, any payments to the employee for back pay, front pay, general damages unrelated to physical injury or sickness, or punitive damages are generally taxable to the employee, whereas payments for the employee's medical expenses and general damages relating to his or her physical injury or sickness may be excluded from income.[36] Thus, if the facts of the case allow, the plaintiff's complaint should specifically allege physical injury or sickness as a result of the employer's tortious conduct. If the action is settled later, this pleading will facilitate allocation of a portion of the settlement proceeds to the plaintiff's physical injury or sickness, exclusion of the funds so allocated from income, and a greater net recovery to the plaintiff. Although the allocation recited in a settlement is not binding upon the IRS, the Tax Court has historically given great weight to reasonable allocations set forth in a settlement agreement negotiated at arms' length.[37] 

Most employment claims can proceed either in state or federal court. Thus, for example, a complaint that alleges the breach of an implied contract, wrongful termination in violation of public policy, and statutory claims under the FEHA can be filed in state court and, in the absence of diversity jurisdiction, will remain there through verdict. However, the inclusion of claims under Title VII, the ADA, or the ADEA, which are within the original jurisdiction of the U. S. district court,[38] exposes the entire case to removal.[39] In the event of removal, the federal court will usually exercise supplemental jurisdiction over the pendent state claims, although it is not required to do so.[40] Plaintiff's counsel must note that a plaintiff whose state court action has been removed has only 10 days to file a request for jury trial with the district court, and so must be prepared to act promptly.[41] 

There are advantages and disadvantages to proceeding in each forum. Counsel should consider jury demographics in the respective venues, the sometimes onerous pretrial requirements of federal practice, limited voir dire in federal court, and the federal requirement that a plaintiff's verdict be unanimous. Conventional wisdom is that these and other factors militate in favor of filing, whenever possible, in state court. However, cases that will depend for their success upon discovery of information contained in the personnel files of nonparty employees are often best filed, when possible, in federal court, given the broad privacy protections recognized under the California discovery authorities. 

Access to information and documentation regarding the plaintiff's former coworkers or supervisors is particularly critical in reduction-in-force cases. In these cases the employer contends that the plaintiff was selected for layoff on the basis of the plaintiff's performance relative to that of his or her peers, and not for any discriminatory reason. Access to information and documentation is also critical in harassment cases, in which evidence of other complaints against, or prior warnings to, the perpetrator is essential. A demand for this documentation will invariably be met with an objection from the employer that the discovery violates the privacy of its nonparty employees. 

California and federal courts employ different analyses in weighing the plaintiff's right to discovery against the nonparty employees' right to privacy. The California Constitution expressly recognizes the right to privacy,[42] while the U.S. Constitution does not. As a consequence, state court plaintiffs must usually demonstrate a "compelling public need" for the discovery that outweighs the nonparty employees' fundamental right to privacy.[43] In contrast, federal courts generally have rejected the "compelling interest" analysis as overly restricting,[44] in favor of an overall balancing approach.[45] Because a federal court will apply federal common law in cases that join state and federal claims,[46] the need to discover information contained in the personnel files of the plaintiff's supervisor or coworkers may itself compel the inclusion of federal statutory claims and the initiation of litigation in federal court, even though state court would otherwise be the preferred forum. 

When counsel wants to file in state court a case that is vulnerable to removal due to diversity of citizenship—such as when a California employee sues a corporate employer whose place of incorporation and principal place of business are outside California—it is sometimes possible to destroy diversity jurisdiction by naming, both in the administrative charge and in the subsequent complaint, individual defendants who are California residents. While the Ninth Circuit has held that individual supervisors are not liable for employment discrimination of any kind under the ADEA or Title VII,[47] and while California courts have precluded supervisor liability under the FEHA for personnel management decisions that appear common and unremarkable, but which may in hindsight be considered discriminatory,[48] individual supervisors can be held personally liable under the FEHA for their own acts of retaliation or harassment.[49] Supervisors can also be held personally liable for "aiding and abetting" harassment, but mere failure to take action to prevent harassment is generally insufficient to result in individual liability.[50] 

Every plaintiff's employment case must be evaluated, both at the outset and as it progresses through discovery, from the standpoint of the employer's inevitable motion for summary judgment. In weighing a motion for summary judgment directed toward claims arising under the FEHA, the ADEA, or the ADA, courts will employ the same burden-shifting analysis that is applicable to claims arising under Title VII.[51] Claims of unlawful discrimination under Title VII can be predicated upon either of two theories: the "disparate treatment" theory and the "disparate impact" theory. Each theory may be applied to a particular set of facts,[52] and each requires a different analytical model for summary judgment. 

The disparate treatment theory is conceptually divisible into two types of cases: "pretext" cases and "mixed motive" cases. In a pretext disparate treatment case, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of intentional discrimination. Once this burden is met, the employer must then articulate a legitimate, nondiscriminatory reason for its conduct. If the employer's explanation is satisfactory, the plaintiff may then attempt to prove, by a preponderance of the evidence, that the reasons offered by the employer were not its true reasons, but were in fact a pretext for discrimination.[53] Since an employer rarely admits to behaving with a discriminatory intent, an employee may prove unlawful discrimination with either direct or circumstantial evidence.[54] For example, although the use of statistics is normally associated with disparate impact cases, discriminatory intent in a disparate treatment case may be inferred from statistical evidence.[55] 

In order to prove a prima facie case while proceeding under a pretext disparate treatment theory, the plaintiff must demonstrate 1) that he or she belongs to a protected class, 2) that he or she was discharged from a job for which he or she was qualified, and 3) that his or her job was filled by a person not in the plaintiff's protected class.[56] The degree of proof required to establish a prima facie case of disparate treatment discrimination is "minimal,"[57] and need only be enough to give rise to "an inference" of discrimination.[58] 

Once the plaintiff establishes his or her prima facie case, a rebuttable "presumption of discrimination" arises in pretext disparate treatment cases, and the burden of production on summary judgment then shifts to the defendant to "articulate some legitimate, nondiscriminatory reason" for the employee's termination.[59] Even if the employer is able to articulate a legitimate, nondiscriminatory reason for the challenged employment decision, "summary judgment is normally inappropriate," as it is usually the province of the trier of fact (i.e., the jury) to determine the credibility of the employer's proffered reasons for its conduct.[60] 

In a mixed motive disparate treatment case, the employer, either through its own admission or as the result of irrefutable evidence proffered by the plaintiff, must acknowledge that discriminatory considerations played some part in the adverse employment decision. In mixed motive disparate treatment cases, the plaintiff must demonstrate by a preponderance of the evidence that unlawful discrimination was a "motivating factor" in the adverse employment decision.[61] Once this burden is met, the employer must then attempt to prove, by a preponderance of the evidence, that it would have made the challenged employment decision irrespective of the impermissibly discriminatory consideration.[62] Under Title VII, an employer who proves that "it would have taken the same action in the absence of the impermissible motivating factor" is not liable for damages, but may yet be liable for the plaintiff's attorneys' fees and costs.[63] 

Under a disparate impact theory, the plaintiff has the burden of demonstrating, usually through statistical evidence, that a particular employment practice, while neutral on its face, has a substantial and adverse impact on persons protected by Title VII. If this burden is met, the employer then has the burden of proving, by a preponderance of the evidence, that the challenged employment practice is required by business necessity. If the employer meets this burden, the plaintiff may attempt to prove, by a preponderance of the evidence, that alternative practices with a less disparate impact would serve the employer equally well.[64] 

Disparate impact analysis may properly be applied to employment decisions that are based on the exercise of personal judgment or the application of inherently subjective criteria,[65] which is frequently the situation in reduction-in-force cases. A claim of disparate impact discrimination can be established without proof of intentional discrimination, and an employer cannot defeat a disparate impact claim by demonstrating either "good intent" or absence of discriminatory intent, since intent—as distinguished from result—is irrelevant to a disparate impact theory.[66] 

In the final analysis, the standards governing summary judgment provide a good yardstick against which the plaintiff's case can be measured. If counsel's initial analysis reveals a case that is unlikely to survive summary judgment, then representation should never be undertaken in the first place. Conversely, where evidence of discriminatory conduct and pretextual coverup will clearly present triable issues of fact for jury determination, the decision to undertake representation is an easy one, assuming that the collectible damages justify the likely effort. It is above the yawning abyss between these extremes that most plaintiffs, on their tightropes, walk. Counsel should undertake these cases at their peril, and only after full disclosure to their clients and partners of the inherent risks. 


Practitioners determining whether to commit their precious time and limited resources to the prosecution of a plaintiff's employment case, usually on a contingent fee basis, must have a sure grasp of the economics involved. Plaintiff's counsel should anticipate spending between 250 and 750 hours sheparding a two-party (single employee versus employer) plaintiff's case of any substance through verdict, depending upon its complexity. Multiply those hours by the hourly rate counsel might be charging for other, noncontingency matters, and the result is the "break even" point for the case. If the value of the case—defined as the percentage likelihood of a plaintiff's verdict multiplied by a reasonable approximation of the recoverable damages—is not at least three times the break-even amount, plaintiff's counsel should steer clear of the case. Absent exceptional circumstances, it is a mistake to take any case based upon its perceived "quick settlement" value; invariably such cases are precisely the ones that will not be settled.

Between case intake and final verdict, plaintiff's counsel can expect to incur between $10,000 and $35,000 in costs, including filing fees, fax and photocopy costs, deposition expenses, expert witness fees, exhibit costs, and jury fees. If, as is often the case, the client is unable or unwilling to bear those expenses as they are incurred, then plaintiff's counsel must be prepared to advance these costs, and to put this investment at risk in the event of a summary judgment or defense verdict. Against this backdrop, the importance of careful case evaluation becomes apparent.—C.J.G. 

1 Lab. Code §2922.
2 Foley v. Interactive Data Corp., 47 Cal. 3d 654 (1988).
3 Scott v. Pacific Gas & Electric Co., 11 Cal. 4th 454 (1995).
4 Pugh v. See's Candies, Inc., 116 Cal. App. 3d 311, 329 (1981).
5 Lab. Code §1198.5.
6 Haggard v. Kimberly Quality Care, Inc., 39 Cal. App. 4th 508 (1995).
7 Walker v. Blue Cross of California, 4 Cal. App. 4th 985, 993 (1992).
8 Gantt v. Sentry Insurance, 1 Cal. 4th 1083, 1095 (1992).
9 42 U.S.C. §§2000e to 2000e-17.
10 29 U.S.C. §§621-623.
11 42 U.S.C. §§12101-12213.
12 Gov't Code §§12900-12996.
13 Stevenson v. Superior Court, 42 Cal. App. 4th 1243 (1996). However, the plaintiff's petition for review was granted by the California Supreme Court on May 15, 1996.
14 Walters v. Metropolitan Educational Enterprises, Inc., ___ U.S. ___, 136 L. Ed. 2d 644, 117 S. Ct. 660 (1997).
15 Rojo v. Kliger, 52 Cal. 3d 65 (1990).
16 Foley, 47 Cal. 3d at 700.
17 Stanchfield v. Hamer Toyota, Inc., 37 Cal. App. 4th 1495, 1502 (1995).
18 Ford Motor Co. v. EEOC, 458 U.S. 219, 73 L. Ed. 2d 721, 102 S. Ct. 3057 (1982).
19 Commodore Home Sys., Inc. v. Superior Court, 32 Cal. 3d 211, 221 (1982).
20 42 U.S.C. §1981a(b).
21 29 U.S.C. §626(b).
22 Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167 (1980).
23 But see Melugin v. Zurich Canada, 96 Daily Journal D.A.R. 13189 (Jan. 15, 1997), in which coverage was found to exist under the particular language of the employer's policy.
24 La Jolla Beach & Tennis Club, Inc. v. Industrial Indem. Co., 9 Cal. 4th 27, 42 (1994).
25 McKennon v. Nashville Banner Publishing Co., 513 U.S. ___, 130 L. Ed. 2d 852, 115 S. Ct. 879 (1995); Camp v. Jeffer Mangels, Butler & Marmaro, 35 Cal. App. 4th 620 (1995). See also James C. Martin and Paul D. Fogel, After Shock, Los Angeles Lawyer, Oct. 1996, at 39.
26 Bond v. Pulsar Video Products, 50 Cal. App. 4th 918 (1996).
27 Okoli v. Lockheed Technical Operations Co., 36 Cal. App. 4th 1607, 1613 (1995) (exhaustion is jurisdictional under the FEHA); Edwards v. Occidental Chemical Corp., 892 F. 2d 1442 (9th Cir. 1990) (exhaustion is not jurisdictional under Title VII). See Anne Richardson, Absolutely Exhausted, Los Angeles Lawyer, Sept. 95, at 49.
28 Gov't Code §12960.
29 42 U.S.C. §2000e-5(e).
30 Green v. Los Angeles Cty. Superintendent of Schs., 883 F. 2d 1472, 1480 (9th Cir. 1989).
31 Gov't Code §12965(b).
32 42 U.S.C. §2000e-5(f)(1) (within 90 days after "the giving of such notice"); 29 U.S.C. §626(e) (within 90 days after "receipt of such notice"). In appropriate circumstances, these deadlines may be equitably polled. Nelmida v. Shelley Eurocars, Inc., 97 Daily Journal D.A.R. 5436 (Apr. 30 1997).
33 29 U.S.C. §626(d); Dempsey v. Pacific Bell Co., 789 F. 2d 1451 (9th Cir. 1986) (60-day "conciliation period" is jurisdictional, but may be equitably tolled).
34 Code Civ. Proc. §340(3); Barton v. New United Motor Manufacturing, Inc., 43 Cal. App. 4th 1200 (1996).
35 Romano v. Rockwell International, Inc., 14 Cal. 4th 479, 493 (1996).
36 I.R.C. §104(a)(2), amended by Small Business Job Protection Act of 1996, Pub. L. No. 104-188, 110 Stat. 1755 (1996).
37 McKay v. Commissioner, 102 T. C. 465 (1994).
38 28 U.S.C. §1331.
39 28 U.S.C. §1441(b).
40 28 U.S.C. §1367.
41 Fed. R. Civ. P. 81(c).
42 Cal. Const. art. I, §1.
43 Board of Trustees v. Superior Court, 119 Cal. App. 3d 516, 525 (1981); Harding Lawson Associates v. Superior Court, 10 Cal. App. 4th 7 (1992).
44 Pagano v. Oroville Hospital, 145 F.R.D. 683, 698 (E.D. Cal. 1993); Ceramic Corp. v. Inka Maritime Corp., 163 F.R.D. 584, 589 (C.D. Cal. 1995).
45 Fed. R. Civ. P. 26(b); Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995).
46 William T. Thompson Co. v. General Nutrition Corp., 671 F. 2d 100, 104 (10th Cir. 1982); Perrignon v. Bergin-Brunswick Corp., 77 F.R.D. 455, 458-459 (N.D. Cal. 1978).
47 Miller v. Maxwell's Intern, Inc., 991 F. 2d 583, 587-588 (9th Cir. 1993).
48 Janken v. GM Hughes Electronics, 46 Cal. App. 4th 55 (1996).
49 Page v. Superior Court, 31 Cal. App. 4th 1206 (1995); Matthews v. Superior Court, 34 Cal. App. 4th 598, 603 (1995).
50 Fiol v. Doellstedt, 96 Daily Journal D.A.R. 13898 (Feb. 19, 1997).
51 Ritter v. Hughes Aircraft, 58 F. 3d 454, 456 (9th Cir. 1995) (ADEA); Addy v. Bliss & Glennon, 44 Cal. App. 4th 205, 215 (1996) (FEHA).
52 Teamsters v. United States, 431 U.S. 324, 335 n.15, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977).
53 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).
54 Oxman v. WLS-TV, 846 F. 2d 448, 452 (7th Cir. 1988); Phipps v. Gary Drilling Co., Inc., 722 F. 2d 615 (E.D. Cal. 1989).
55 Denison v. Swaco Geolograph Co., 941 F. 2d 1416, 1424 (10th Cir. 1991); Spaulding v. University of Washington, 740 F. 2d 686, 703 (9th Cir. 1984).
56 McDonnell Douglas, 411 U.S. 792 (Title VII claim); Rose v. Wells Fargo & Co., 902 F. 2d 1417, 1421 (9th Cir. 1990) (ADEA claim).
57 Messick v. Horizon Industries, Inc., 62 F. 3d 1227, 1229 (9th Cir. 1995).
58 Wallis v. J. R. Simplot Co., 26 F. 3d 885, 889 (9th Cir. 1994).
59 Burdine, 67 L. Ed. 2d at 215.
60 Sischo-Knownejad v. Merced Community College Dist., 934 F. 2d 1104, 1111 (9th Cir. 1991); Saint Mary's Honor Center v. Hicks, 509 U.S. _____, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993); Washington v. Garrett, 10 F. 3d 1421, 1433 (9th Cir. 1993).
61 Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977).
62 Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989).
63 42 U.S.C. §2000e-5(g)(2)(B).
64 42 U.S.C. §2000e-2(k); Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 104 L. Ed. 2d 733, 109 S. Ct. 2115 (1989).
65 Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 988-991, 101 L. Ed. 2d 827, 108 S. Ct. 2777 (1988).
66 Gay v. Waiters' and Dairy Lunchmen's Union, 694 F. 2d 531, 537 (9th Cir. 1982).

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