By Scott Tiedemann and Kaylee Feick
Scott Tiedemann is the Managing Partner of Liebert Cassidy Whitmore, California's largest public sector labor, employment and education law firm. He is the author of the CPER Pocket Guide to the Firefighters Procedural Bill of Rights, as well as a chapter on that topic in California Public Sector Employment Law. Kaylee Feick is an Associate in Liebert Cassidy Whitmore's Los Angeles office, where she provides representation and counsel to clients in all matters pertaining to labor, employment, and education law. She provides support in litigation claims for discrimination, harassment, retaliation, wage and hour disputes, and other employment matters. Kaylee can be reached at (310) 981-2735 or kfeick@lcwlegal.com.
Brome v. California Highway Patrol, 44 Cal. App. 5th 786 (2020)
Jay Brome was an openly gay California Highway Patrol (CHP) officer. During his nearly 20-year career, other officers subjected Brome to derogatory, homophobic comments; singled him out for pranks; and repeatedly defaced his mailbox. While Brome transferred CHP offices seeking a better working environment, the offensive comments about his sexual orientation continued. Officers at Brome's new office also frequently refused to provide him with backup assistance during enforcement stops, including during high-risk situations that should be handled by at least two officers.
Through 2014, Brome continued to complain to his supervisors. However, 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 California Department of Fair Employment and Housing (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 against CHP.
The CHP sought to dismiss the lawsuit as untimely. Because an employee's DFEH complaint must be filed within one year of the alleged discriminatory or harassing conduct, the CHP argued that Brome could only sue based on acts occurring on or after September 15, 2015. The trial court agreed and dismissed Brome's lawsuit since the crux of his claims occurred before the commencement of his medical leave in January 2015. Brome appealed.
First, the court determined that Brome's workers' compensation claim could equitably toll the one-year deadline (which applied at that time) for filing his DFEH complaint. To use equitable tolling, the employee has to prove: (1) timely notice; (2) lack of prejudice to the employer; and (3) the employee's own good faith conduct. The court concluded that Brome could establish all three of the elements. Brome's workers' compensation claim put the CHP on notice of his potential...
