Veasey v. Los Angeles

Filed 7/19/07 Veasey v. Los Angeles CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Los Angeles County, Tricia A. Bigelow, Judge. Judgment is affirmed.

Law Offices of David Peter Cwiklo and David Peter Cwiklo for Plaintiff and Appellant.

Rockard J. Delgadillo, City Attorney and Paul L. Winnemore, Deputy City Attorney, for Defendants and Respondents.

_______________________________________

In April 2002, Ollie Veasey, an African-American employee of the City of Los Angeles (City) was denied a promotion to the position of Wastewater Collection Supervisor. Believing he had performed well in the interview, Veasey asked the interview panel for feedback. Veasey was told that his answer to one particular question was inadequate. Veasey disbelieved this explanation, and thought the panel was giving [him] the runaround. He chose, however to just let it go and focus on obtaining a different promotion, to Wastewater Treatment Mechanic Supervisor, a promotion that he received in April 2003.

In July 2003, three other African-American employees of the City of Los Angeles filed suit challenging the Wastewater Collection Supervisor promotions as racially discriminatory (the McMillian action). In March 2005, testimony in the McMillian action revealed that Veasey may have been denied the promotion to Wastewater Collection Supervisor for racially discriminatory reasons.

In August 2005, more than three years after Veasey had been denied the promotion, and two years after he had received a better promotion, Veasey brought the instant action, alleging that he was wrongfully denied the Wastewater Collection Supervisor promotion on the basis of race. Summary judgment was entered against Veasey on the basis of the statute of limitations. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At issue in this case is the process used by the Bureau of Sanitation to promote employees to the position of Wastewater Collection Supervisor in 2002 and 2003. A brief overview of the process is necessary to an understanding of the action. Promotions in the City are by competitive examination. When a bureau wishes to conduct an exam, a job bulletin is issued which informs prospective applicants of the duties of the job and the minimum requirements to qualify for the exam. Once the exam is conducted, those who have passed the exam are listed on a register of eligibles, or eligible list. A register of eligibles is valid for two years. When, during those two years, the bureau has positions to fill, the bureau interviews candidates from the top remaining ranks on the eligible list, and selects the candidates it wishes to hire.

1. The First Examination

In August 2001, a job bulletin announced an examination for the position of Wastewater Collection Supervisor. Veasey sat for the examination, and successfully completed it. His name appeared on a March 2002 eligible list. Interviews were conducted in April 2002, and Veasey was among the candidates interviewed. The interview panel consisted of Wastewater Collection Managers^[1] Randy Riley, Ameer Faquir, and Ernest Turner. Veasey did not receive the promotion. On April 22, 2002, four other candidates were promoted to the position of Wastewater Collection Supervisor.

Veasey was unaware of how close he had come to promoting. At the conclusion of the interviews, the interview panel initially rated Veasey as one of the four candidates who would receive the promotion. It appears, however, that before the promotion decision was finalized, Riley and Turner lowered the scores they had awarded Veasey and increased the scores they had awarded another applicant, Robert McQuay, with the result that McQuay, who is White, was promoted instead of Veasey.^[2] The third member of the interview panel, Faquir, was not involved in the score-altering, as he had left on vacation immediately following the interviews.

The reason for the change in the scores is hotly disputed. Riley took the position that he had been informed by another Wastewater Collection Manager, Barry Berggren, that Veasey had suffered a significant suspension due to attendance issues. Riley agreed with Berggren that this would have to be taken into account in the candidates[] interview scores, and adjusted the scores he gave to Veasey and McQuay.^[3] Turner, however, took the position that, after Riley had spoken with Berggren and Assistant Director James Langley, Riley told Turner that Berggren and Langley did not want Veasey to promote and that they had wanted McQuay to promote over him. At Turners deposition, he stated his understanding was that Riley had been told to promote McQuay because McQuay had received the top score on the written examination. The third manager, Faquir, learned of the score alteration after it had happened. He testified^[4] that Turner had told him the scores had been changed because of Veaseys prior suspension. However, Faquir was aware that McQuay had suffered a similar, and perhaps more serious, disciplinary suspension.^[5] Faquir found it noteworthy that African-American employee Veaseys prior suspension was taken into account, while White employee McQuays was not.

In any event, Veaseys score was changed and he did not receive the promotion. Shortly after he learned that he did not receive the promotion, Veasey asked all three members of the interview panel to give him a critique of his interview. Veasey met with Turner and Riley, and was given some reasons why he was not promoted. The reasons did not include that his score had been changed, or that his prior disciplinary violation made him unsuitable for promotion. Instead, Riley told Veasey that his answer to one of the hypothetical questions had been inadequate.^[6] Veasey was skeptical as to Rileys view of the correct answer to the question, and felt like Riley was just giving [him] the runaround. Faquir did not take part in the critique, as he was still on vacation. Veasey did not pursue a critique with Faquir upon Faquirs return. Instead, Veasey just let it go and started concentrating on pursuing a promotion to Wastewater Treatment Mechanic Supervisor.

2. The Second Examination

In July 2002, another job bulletin announced a second examination for Wastewater Collection Supervisor. This was considered unusual by many of the employees who had sought the promotion at the first examination, as the eligible list from the first exam was still in effect. Veasey did not apply for the second exam. He believed any further interviews and promotions should have been made exclusively from the first eligible list.

The requirements for Wastewater Collection Supervisor were relaxed in the second bulletin. One of the results of this change was that Kent Carlson, a White employee, became eligible to sit for the second exam when he had not been eligible to sit for the first exam. Many employees in the Bureau of Sanitation, including Veasey, believed that the exam qualifications had been changed and the second exam given with the purpose of enabling Carlson to promote. Carlson was successful on the second exam and received one of the next four promotions, in March 2003.^[7]

3. Veaseys Promotion

While the second Wastewater Collection Supervisor exam process was moving forward, Veasey concentrated his efforts on obtaining a promotion to Wastewater Treatment Mechanic Supervisor. He applied for the position in October 2002, and received the promotion in April 2003. Wastewater Treatment Mechanic Supervisors are paid approximately $17,000 more per year than Wastewater Collection Supervisors.

4. TheMcMillian Action

On July 11, 2003, three African-American employees who had taken the first Wastewater Collection Supervisor exam brought suit, alleging the giving of the second exam was racially discriminatory, in that it was done for the purpose of promoting Carlson because he was White. The theory of the McMillian action was that the Bureau of Sanitation believed that, after the first set of promotions, too many African-Americans remained in the top ranks on the eligible list. Although Veasey believed that the second examination had been given to benefit Carlson, and that management had violated the Civil Service rules by conducting the second exam, he did not participate in the McMillian action.

The McMillian action proceeded to jury trial in February and March 2005. In March 2005, Faquir testified to the April 2002 alteration of the scores of Veasey and McQuay, and his suspicion of impropriety, given that the African-American candidates disciplinary history apparently had been considered but the White candidates had not.

Aceanyer Brown was a former employee of the Department of Sanitation. He attended part of McMillian trial and spoke with the McMillian plaintiffs afterward. He was informed, by the McMillian plaintiffs, of the content of Faquirs testimony. He decided to inform Veasey.^[8]

On March 21, 2005, the jury found in favor of the McMillian plaintiffs. Judgment was entered on July 15, 2005, and the City pursued an appeal.

5. Veaseys Administrative Complaint

In April 2005, Brown informed Veasey of Faquirs testimony in the McMillian action. On August 24, 2005, Veasey filed a complaint with the Department of Fair Employment and Housing (DFEH) alleging he was denied a promotion on the basis of race. A right-to-sue letter issued on September 2, 2005.

6. Allegations of the Complaint

On October 11, 2005, Veasey filed his complaint in the instant action, naming as defendants the City, Riley, Berggren and Langley.^[9] Veaseys complaint was based on two alleged acts of discrimination: the alteration of his score after the first exam; and the giving of the second exam to benefit Carlson. He alleged six causes of action: (1) failure to promote in violation of the Fair Employment and Housing Act (FEHA); (2) wrongful failure to promote in violation of public policy as set forth in the FEHA; (3) wrongful failure to promote in violation of the California Constitution;^[10] (4) hostile environment/racial harassment in violation of the FEHA; (5) intentional infliction of emotional distress; and (6) defamation. Veasey did not assert any harassing or discriminatory acts other than the two denials of the Wastewater Collection Supervisor promotion. The defamation cause of action was apparently based on testimony given in the McMillian trial by City witnesses who had attempted to justify Veaseys failure to receive the promotion by challenging his abilities.

7. Motion for Summary Judgment

On June 22, 2006, defendants moved for summary judgment on several bases, including that Veaseys complaint is time-barred. Specifically, defendants argued that Veasey had one year, or, at most, one year and 90 days, within which to file his DFEH complaint. As Veasey was denied the promotion after the first exam in April 2002 and denied the promotion after the second exam in March 2003, Veaseys August 2005 DFEH complaint was untimely. Defendants also argued that Veasey could not establish a prima facie case of discrimination. Defendants additionally argued that the intentional infliction of emotional distress cause of action must fail as the alleged conduct of defendants was not sufficiently extreme. Finally, defendants argued that all of the statements on which the defamation cause of action was based were privileged as they were made in the context of a judicial proceeding.

8. Veaseys Opposition

In opposition, Veasey argued that his DFEH complaint was timely based on the discovery rule and fraudulent concealment. Relying on the undisputed evidence that Veasey did not know that the scores had been changed after the first examination, Veasey argued that the City had intentionally concealed its wrongdoing, tolling the relevant statute.^[11] As to the merits, Veasey relied, at great length, on testimony from the McMillian trial. Indeed, Veasey argued that the McMillian judgment should have res judicata effect, even though the McMillian case was then pending on appeal. Veasey also included his entire deposition transcript in opposition to the motion for summary judgment.^[12]

9. Voluntary Dismissal of the Defamation Cause of Action

Veasey did not oppose the summary judgment motion to the extent it addressed the defamation cause of action. Instead, four days after his opposition, Veasey filed a request for dismissal without prejudice of the defamation cause of action. The request for dismissal states, each Party to Bear Their Own Costs of Suit.

10. Supplemental Filing, Hearing, and Judgment

Defendants filed their reply in support of summary judgment on August 25, 2006. A hearing was held on September 1, 2006.^[13] On September 5, apparently without court permission, Veasey filed a supplemental opposition to the motion for summary judgment. In his supplemental opposition, Veasey argued, for the first time, that the continuing violation doctrine tolled the statute of limitations. Veasey argued that each day the City hid from him the fact that Riley and Turner had changed the scores on the first interview constituted a new violation a new act of discrimination a new ground to trigger a new FEHA violation a new violation of California public policy a continuing violation of Veaseys rights a systematic policy of racial discrimination . . . .^[14]

On September 6, 2006, the trial court issued its ruling granting summary judgment. The court concluded that Veaseys discrimination and harassment causes of action were time-barred and his allegations of intentional infliction of emotional distress were insufficient. As to the defamation cause of action, the court also granted summary judgment, pending a hearing on [the] propriety of the request for dismissal. The record does not indicate whether such a hearing was sought, or held.^[15] Judgment was entered in favor of defendants on January 19, 2007. Veasey filed a timely notice of appeal.

On April 24, 2007, while this appeal was pending, we issued an opinion in the McMillian case, reversing the judgment to the extent it was based on a failure to promote due to race discrimination, on the basis of insufficient evidence.^[16] (McMillian v. City of Los Angeles (Apr. 24, 2007, B185030 [nonpub. opn.].) The McMillian plaintiffs sought Supreme Court review; their petition for review was denied.^[17]

ISSUES ON APPEAL

On appeal, we first consider whether Veaseys FEHA cause of action is barred by his failure to timely file his DFEH complaint. We conclude that the doctrines of the discovery rule and fraudulent concealment do not apply to toll the FEHA statute of limitations, and that the undisputed facts do not support the application of the continuing violation doctrine. As such, we conclude that Veaseys FEHA cause of action is time barred. We next consider whether Veasey can avoid the bar by recasting his cause of action as one for a common law tort of wrongful failure to promote in violation of public policy. While we question the existence of such a tort in these circumstances, we conclude that, in any event, Veaseys pursuit of such a cause of action is also time-barred, as his complaint is untimely and he cannot establish delayed discovery or fraudulent concealment. We also consider whether Veasey alleged conduct sufficiently egregious to support a cause of action for intentional infliction of emotional distress, and conclude that he did not. Finally, we conclude that the trial court did not err in granting summary judgment on the defamation cause of action even though Veasey had attempted to voluntarily dismiss the cause of action. We therefore affirm.

DISCUSSION

1. Standard of Review

 A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiffs asserted causes of action can prevail. (Molkov. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) The pleadings define the issues to be considered on a motion for summary judgment. (Sadlier v.Superior Court (1986) 184 Cal.App.3d 1050, 1055.) As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.) (Ferrariv. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) We review orders granting or denying a summary judgment motion de novo. (FSR Brokerage, Inc.v. Superior Court (1995) 35 Cal.App.4th 69, 72; Union Bankv. Superior Court (1995) 31 Cal.App.4th 573, 579.) We exercise an independent assessment of the correctness of the trial courts ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. (Iversonv. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)

 While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper.  (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487.)

2. The FEHA Cause of Action is Untimely

Civil statutes of limitations protect defendants from the necessity of defending stale claims and require plaintiffs to pursue their claims diligently. [Citations.] They are  designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.   (Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th at p. 488.)

The FEHA prohibits unlawful employment practices. (Gov. Code, 12940.) It is an unlawful employment practice [f]or an employer, because of the race . . . of any person, to refuse to hire or employ the person or . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment. (Gov. Code,  12940, subd. (a).)

Under the FEHA, the employee must exhaust the administrative remedy provided by the statute by filing a complaint with the [DFEH] and must obtain from the [DFEH] a notice of right to sue in order to be entitled to file a civil action in court based on violations of the FEHA. [Citations.] The timely filing of an administrative complaint is a prerequisite to the bringing of a civil action for damages under the FEHA. (Romano v. Rockwell Internat., Inc., supra, 14 Cal.4th at p. 492.)

Government Code section 12960 sets forth the requirement of filing an administrative complaint with the DFEH. Subdivision (d) of that statute provides, No complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice . . . occurred, except that this period may be extended as follows: [] (1) For a period of time not to exceed 90 days following the expiration of that year, if a person allegedly aggrieved by an unlawful practice first obtained knowledge of the facts of the alleged unlawful practice after the expiration of one year from the date of their occurrence.^[18]

Here, Veasey was denied the promotion following the first exam in April 2002. He was denied the promotion following the second exam in March 2003. Even assuming the 90-day extension of Government Code section 12960, subdivision (d)(1) applies, Veasey had until, at the very latest, June 2004 to file his DFEH complaint challenging the failure to promote him.^[19] Veasey did not file his DFEH complaint until August 2005, more than a year too late. His claim is time-barred by the clear language of Government Code section 12960.

Veasey argues that his delayed discovery of the 2002 alteration of his interview score, and the fraudulent concealment thereof, toll the statutory period. We disagree. The Legislature has already determined that the delayed discovery of the facts of an unlawful employment practice entitles the plaintiff to an additional 90 days beyond the one-year period. Since the Legislature has provided a remedy for the problem [plaintiff] has identified, we decline to formulate a different remedy. We recognize the harshness of this statutory scheme which provides no relief for the claimant who remains ignorant of the existence of a claim until after the statutory deadline for filing the claim has passed. We are constrained, however, to leave this issue of policy to the Legislature. (Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 93 [Williams].) Williams is indistinguishable from this case. In Williams, the plaintiff interviewed for a job, and learned that he did not get the position on June 21, 1994. On October 27, 1995, more than one year and 90 days later, Williams learned that racial discrimination may have played a part in the decision not to hire him. (Id. at p. 88.) His subsequent DFEH complaint was held to be untimely, over Williamss argument that he could not have filed within the statutory period as he had not known at that time that he had a potential discrimination claim. (Id. at pp. 92-93.) The same result applies here. Veasey argues that we should not follow Williams or should create an exception to it. We disagree. The Legislature has already determined that the delayed discovery of the facts of an unlawful employment practice extends the one-year period by no more than 90 days; we cannot undermine that determination with a judicially-created exception.^[20]

Veasey next argues that the continuing violation doctrine applies to render his DFEH complaint timely. There are two situations in which the continuing violation doctrine may be asserted. First, it can apply when there has been a systematic, ongoing, corporate policy of discrimination. Second, it can apply when there has been a series of discriminatory acts committed against an individual plaintiff. (Alch v. Superior Court (2004) 122 Cal.App.4th 339, 368.) As Veasey appears to be arguing under both situations, we consider them individually.

When there is a systematic policy of discrimination, which began before the statutory period, the continuing violation doctrine renders the plaintiffs administrative complaint timely as long as the discriminatory policy continued into the statutory period. (Alch v. Superior Court (2004) 122 Cal.App.4th at p. 369.) This branch of the continuing violation doctrine has been applied to render timely a plaintiffs administrative complaint challenging a discriminatory promotional system. (Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1052‑1053.) For example, if the plaintiff alleges a discriminatory system resulted in a faulty eligible list, the continuing validity of the eligible list into the statutory period constitutes a sufficient continuation of the discriminatory practice to render the plaintiffs administrative complaint timely. (Id. at p. 1053 & fn. 1.) In this case, Veaseys name appeared on a March 2002 eligible list for promotion to Wastewater Collection Supervisor. He argues both that he should have immediately promoted off that list, and that all subsequent promotions should have been made off that list during its two-year lifespan (instead of the eligible list that resulted from the second exam). But the March 2002 eligible list expired in March 2004, more than one year (and 90 days) before Veasey filed his DFEH complaint in August 2005. In short, for Veaseys DFEH complaint to have been timely under this branch of the continuing violation doctrine, he must show that the discriminatory promotional system he is challenging was still in effect in May of 2004. But, by this time, there was no continuing discrimination against Veasey as the eligible list on which his name had appeared had expired. Moreover, in April 2003, Veasey had accepted a better-paying promotion to the supervisory level. As Veasey was apparently no longer interested in pursuing the Wastewater Collection Supervisor promotion at this time, he was no longer subjected to any alleged continuing discrimination in the Wastewater Collection Supervisor selection process.

The second situation in which the continuing violation doctrine applies is when there has been a series of discriminatory acts committed against a plaintiff and the series continues into the limitations period. This is so because a course of conduct can itself be considered to be an unlawful employment practice. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 818‑823.) Under this version of the continuing violation doctrine, the fact that the discriminatory acts committed against a plaintiff during the limitations period are simply part of a course of conduct that began prior to the limitations period enables the plaintiff to recover for all such acts. (Alch v. Superior Court, supra, 122 Cal.App.4th at pp. 369‑370.) Yet Veasey cannot rely on this branch of the continuing violation doctrine because no discriminatory acts allegedly committed against him continued into the limitations period. Cognizant of this fact, Veasey argues that the continuing violation theory is triggered by the fact that, during the limitations period, the City continued to fail to tell him^[21] that the scores on the first examination had been changed. Veasey can identify no authority for the proposition that failing to tell an employee^[22] that he has been discriminated against constitutes a further act of discrimination. Indeed, no FEHA action would ever be time-barred if the employee could wait to file an administrative complaint until after the employer admitted to him that he had been the victim of discrimination. As the simple failure to tell an employee that he has been victimized is not a violation of the FEHA, Veasey cannot rely on the continuing violation doctrine to save the FEHA cause of action based on his untimely DFEH complaint.^[23]

2. The Wrongful Failure to Promote in Violation of Public Policy
Causes of Action are Likewise Untimely

Veasey next asserts that his causes of action for wrongful failure to promote in violation of public policy (as set forth in the FEHA and the California Constitution) are not untimely in that they are not subject to the DFEH filing requirements and the one-year statute of Government Code section 12960. The trial court was skeptical of Veaseys attempts to plead around Government Code section 12960 by simply recasting his failure to promote in violation of the FEHA cause of action into a failure to promote in violation of public policy set forth in the FEHA cause of action. We share the trial courts skepticism. Nonetheless, even if Veasey has properly asserted a cause of action for wrongful employment action in violation of public policy, that cause of action would be barred by the statute of limitations.

Such a cause of action would be subject to the two-year statute of limitations for personal injury. (Code Civ. Proc., 335.1) As Veaseys complaint was filed on October 11, 2005, his complaint was untimely unless Veaseys cause of action accrued after October 11, 2003. Clearly, it did not. Veasey was denied the Wastewater Collection Supervisor promotion in April 2002 and March 2003. His complaint is therefore untimely.

Veasey argues the discovery rule and fraudulent concealment doctrine toll the applicable statute. We discuss each doctrine individually.

The common law rulethat a action for personal injury or property damages accrues on the date of the injuryapplies only as modified by the discovery rule, which provides that the accrual date of a cause of action is delayed until the plaintiff is aware of his injury and its negligent cause. The plaintiff is charged with this awareness as of the date he suspects or should suspect that his injury was caused by wrongdoing, that someone has done something wrong to him. Accordingly, the period of limitations will begin to run without regard to whether the plaintiff is aware of the specific facts necessary to establish his claim, provided that he has a suspicion of wrongdoing, which he is charged with once he has notice or information of circumstances to put a reasonable person on inquiry. (McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160.) We review the undisputed facts. In April 2002, Veasey did not receive the Wastewater Collection Supervisor promotion. He asked his three interviewers to critique him. He met with Riley and Turner. Riley told Veasey his answer to a question had been insufficient. Veasey disagreed and thought Riley was giving [him] the runaround. Although he clearly doubted Rileys proffered reason for his failure to receive the promotion, and he had originally asked for a critique from all three of his interviewers, Veasey decided to just let it go, rather than to pursue his request with Faquir. In 2002, the City gave a second exam for Wastewater Collection Supervisor. Veasey believed that this exam should not have been given, and that it was being given to advance the career of Carlson, a White employee. In July 2003, three other African-American employees brought suit against the City, challenging the giving of the second exam as racially discriminatory; Veasey did not take part. Instead, Veasey had sought, and obtained, a better promotion. It is clear that, by July 2003, Veasey had a more than a suspicion of wrongdoing in connection with his failure to obtain the Wastewater Collection Supervisor promotion. He felt that the reason Riley had given for his initial failure to promote was pretextual, but chose not to pursue it. He believed that the second examination was given in flagrant violation of the Civil Service rules, in order to benefit a White employee. Indeed, three African-American employees with a similar understanding of the facts filed suit at that time.^[24] As such, even though Veasey had not known specifically that his score had been lowered after the first interview, he possessed sufficient knowledge that someone ha[d] done something wrong to him, and the two-year statute began running.

A similar result applies when we consider fraudulent concealment.  The doctrine of fraudulent concealment, which is judicially created [citations], limits the typical statute of limitations. [T]he defendants fraud in concealing a cause of action against him tolls the applicable statute of limitations . . . . [Citations.] In articulating the doctrine, the courts have had as their purpose to disarm a defendant who, by his own deception, has caused a claim to become stale and a plaintiff dilatory. [Citations.]  (Snapp & Associates Ins. Services, Inc. v. Robertson (2002) 96 Cal.App.4th 884, 890.) To successfully invoke the doctrine, the plaintiff must show the substantive elements of fraud^[25] and an excuse for late discovery of the facts. (Ibid.) However, [t]he fraudulent concealment doctrine  does not come into play, whatever the lengths to which a defendant has gone to conceal the wrongs, if a plaintiff is on notice of a potential claim.  [Citation.] A plaintiff is under a duty to reasonably investigate, and a suspicion of wrongdoing, coupled with a knowledge of the harm and its cause, commences the limitations period. (Id. at pp. 890‑891.) As discussed above, Veasey had a sufficient suspicion of wrongdoing to commence the limitations period.

Veasey repeatedly argues that preventing him from pursuing defendants for the egregious act of altering the interview scores on the basis of race would be allowing defendants to get away with discrimination simply because they hid the discriminatory act until the statutory period had expired. The undisputed facts, however, demonstrate that this is a case where Veasey suspected wrongdoing from the start, but chose to just let it go until such time as the McMillian plaintiffs had won a substantial jury verdict for one of the acts Veasey had believed was wrong at the time it had occurred, years earlier. This is precisely the sort of case that statutes of limitations are meant to preclude.

3. The Intentional Infliction of Emotional Distress Cause of Action
is Insufficient

  The elements of a prima facie case for the tort of intentional infliction of emotional distress [are] . . . as follows: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard [for] the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants outrageous conduct.    (Wilkins v. National Broadcasting Co. (1999) 71 Cal.App.4th 1066, 1087.) The conduct must be so extreme and outrageous as to exceed all bounds of that usually tolerated in a civilized society.  (Ibid.)

Veasey alleged that manipulating his score and then hiding it was outrageous conduct done with the knowledge and intent that Veasey would suffer emotional distress. We disagree. While racial discrimination in any form is not acceptable in the employment context, we cannot conclude that the mere failure to promote an employee for a discriminatory reason is so extreme and outrageous as to exceed all bounds of conduct usually tolerated in a civilized society. Nor can we conclude that a defendants attempt to cover up potentially tortious conduct, while wrong, is so extreme and outrageous as to support a cause of action for intentional infliction of emotional distress.^[26]

4. Summary Judgment was Appropriately Granted with Respect
to the Defamation Cause of Action

Defendants sought summary judgment with respect to the defamation cause of action on the basis that the allegedly defamatory statements were absolutely privileged. When Veasey opposed the motion for summary judgment, he offered no opposition to this argument. Four days later, Veasey filed a request for dismissal without prejudice of the defamation cause of action, with the notation that each party was to bear its own costs. The clerk entered the dismissal as requested. Veasey argues that, since he dismissed the defamation cause of action prior to the summary judgment hearing, the trial court lacked jurisdiction to resolve the cause of action by summary judgment. He takes the position that the plaintiff has the absolute right to voluntarily dismiss a cause of action without prejudice, prior to the commencement of trial.

[A] plaintiff may not frustrate the summary judgment statute by interposing a voluntary dismissal without prejudice in lieu of opposition to a defendants motion. The plaintiff who waits until a motion for summary judgment has been filed, and the time for opposition has passed, to attempt to dismiss his or her complaint, is subject to the courts continuing jurisdiction to hear and rule on the pending motion. (Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253, 255.) The trial court did not err.^[27]

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

KITCHING, J.

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^[1] Wastewater Collection Manager was the rank immediately above Wastewater Collection Supervisor.

^[2] Two of the four individuals promoted at this time were African-American.

^[3] Riley testified at deposition that the sole reason he changed McQuays score was so that McQuay would finish higher than Veasey. In other words, McQuay was given additional points because Veasey had been suspended. We share Veaseys concerns that this sort of result-oriented score-altering undermines the integrity of the scored interview process.

^[4] As will be discussed later, Faquir testified regarding the change in Veaseys score during the McMillian trial.

^[5] McQuay had been involved in a physical altercation with a co-worker.

^[6] Riley might have given him other reasons as well, but that one stuck out in [Veaseys] mind.

^[7] Two African-American candidates were also promoted at this time.

^[8] Brown had previously successfully pursued a discrimination action against the City. Faquir was his co-plaintiff. They were represented by the same counsel who represented the McMillian plaintiffs, and who represents Veasey in the instant action, Attorney David Peter Cwiklo.

^[9] Veasey also named an additional defendant, but voluntarily dismissed her.

^[10] In his brief on appeal, Veasey recharacterizes this cause of action as a cause of action for wrongful failure to promote in violation of public policy as set forth in the California Constitution.

^[11] Veasey did not make a similar argument with respect to the giving of the second examination, as his testimony makes clear that he believed the giving of the second examination was improper at the time it was given.

^[12] In their motion for summary judgment, defendants did not rely on the facts that Veasey pursued a critique of his interview, was given an explanation which he disbelieved, and ultimately decided to let it go and concentrate on obtaining the other promotion. Instead, these facts were included in Veaseys deposition, submitted by Veasey in opposition to the motion. In considering a motion for summary judgment, the court is to consider all of the papers submitted, (Code Civ. Proc., 437c, subd. (c)) and need not be concerned with which party submitted the evidence. As the parties did not discuss the effect of this testimony in their briefs, they were given the opportunity to address it at oral argument.

^[13] Veasey did not designate a reporters transcript of this hearing as part of the record on appeal.

^[14] We note that Faquir was, and is, a client of Attorney Cwiklo. To the extent that Attorney Cwiklo argues on behalf of Veasey that the failure of management to inform Veasey of the score changing was itself actionable, Attorney Cwiklo may be taking a position contrary to the interests of his other client, Faquir. We assume that Attorney Cwiklo has informed his clients of any potential conflict, and has obtained any necessary waivers.

^[15] Veasey did, however, unsuccessfully seek reconsideration of the order granting summary judgment, on the basis that since the court disagreed with him, it must have made an egregious error of fact and law and completely overlooked the controlling facts.

^[16] We upheld the judgment to the extent it was based on a separate cause of action for retaliation but remanded the matter to the trial court to reconsider the amount of damages to be awarded.

^[17] We do not mention our opinion on appeal in the McMillian matter for our conclusion that, in that case, the McMillian plaintiffs did not submit sufficient evidence of racial discrimination in the giving of the second exam for Wastewater Collection Supervisor. We mention the appeal only because Veasey argued that the McMillian trial court judgment should be given res judicata effect against the City. In California, no judgment is sufficiently final to have res judicata effect until all appeals have been exhausted or the time to appeal has expired. (Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1174.) The fact that we reversed the judgment in the McMillian case simply illustrates the rationale behind this rule.

^[18] The statute has three further exceptions which are inapplicable to this case.

^[19] This assumes that the two failures to promote can be considered part of the same unlawful practice. If they were two isolated acts, Veasey had until only July 2003 to challenge the April 2002 failure to promote him.

^[20] We also note that Williams was decided in 1999. The Legislature has amended Government Code section 12960 twice since that time, but has not amended it to allow for equitable tolling in situations of delayed discovery or fraudulent concealment.

^[21] Veasey repeatedly states that the City actively concealed the score change and city managers took affirmative actions to conceal their wrongdoing from him on a daily basis from April 2002 to April 2005. With the exception of Riley telling Veasey, shortly after the interview, that Veaseys interview answer to a particular question was insufficient (a statement on which Veasey could not have relied, as he did not believe it), Veasey has identified no evidence of active concealment of the score change he has identified only evidence that he was not affirmatively told.

^[22] In Veaseys reply brief on appeal, he states that the decision to change his scores occurred behind closed doors and that Berggren, Langley and Riley never communicated [the decision] to anyone outside of those 3 co-conspirators. On the contrary, the undisputed evidence is that Riley told Turner, who changed the scores he had awarded Veasey and McQuay, and subsequently told Faquir.

^[23] Veasey does not pursue his hostile environment/harassment cause of action on appeal. As this cause of action was also based on the FEHA, it too was untimely.

^[24] The McMillian plaintiffs were similarly situated in that they had taken the first examination and believed the second examination was improperly given to benefit Carlson. If anything, Veasey was aware of more suspicious facts than the McMillian plaintiffs, in that he had been given the runaround when he inquired why he was not promoted after the first examination.

^[25] Mere ignorance, not induced by fraud of the existence of facts constituting a cause of action does not prevent the running of the statute of limitations. (Baker v. Beech Aircraft Corp. (1974) 39 Cal.App.3d 315, 321.)

^[26] Indeed, Veaseys cause of action is based on the emotional distress he experienced when he learned of Faquirs testimony in the McMillian case to the effect that Veasey had been discriminated against. In other words, it was not the cover up that allegedly caused Veasey distress, but the discrimination that was ultimately revealed.

^[27] We also note that Veaseys purported dismissal of the defamation cause of action was not a proper voluntary dismissal as a matter of right. A defendant in whose favor a dismissal is entered is considered a prevailing party entitled to recover costs. (Code Civ. Proc., 1032, subds. (a)(4) & (b); International Industries, Inc., v. Olen (1978) 21 Cal.3d 218, 221.) Veasey requested a voluntary dismissal, but added the requirement that each party be responsible for its own costs. While this is acceptable if part of a stipulated disposition, a plaintiff cannot unilaterally deprive a prevailing defendant of the costs to which the defendant is necessarily entitled simply by saying so in the request for dismissal.