Tri-Modal must face California sexual harassment lawsuit

September 13, 2021

Tyson Fisher

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A former female employee of Tri-Modal Distribution Services will have her day in court after the California Supreme Court reversed a lower court’s decision to dismiss her sexual harassment case against the trucking company.

On Friday, Sept. 10, a California state court of appeals filed an order from the state’s Supreme Court that sends a sexual harassment lawsuit against Carson, Calif.-based Tri-Modal back to the Los Angeles County Superior Court. In July, the Supreme Court reversed the appellate court’s decision affirming the trial court’s dismissal of the case. At the heart of the case is whether or not the clock on the statute of limitations began in March 2017 or May 2017.

The lawsuit alleges that the plaintiff and Tri-Modal’s Executive Vice President Mike Kelso had a dating relationship that began in 2014. After the vice president wanted to make the relationship more sexual, the woman ended the relationship in 2016. She alleges that after she broke off the relationship, the vice president blocked her promotions.

The woman originally filed the sexual harassment complaint against Tri-Modal with the Department of Fair Employment and Housing in April 2018. According to the court analysis, that meant the one-year clock began to run in April 2017.

During litigation, Tri-Modal’s vice president of operations gave a timeline of the promotions. According to his documentation, three of four employees were promoted before April 2017. The fourth promotion was offered in March 2017 and went into effect May 2017.

According to court documents, the Superior Court invoked the statute of limitations based on the last promoted employee’s offer date by Tri-Modal, not the date the promotion went into effect.

Since the employee was offered and accepted the promotion before April 2017, it falls a month shy of the start of the clock, making it inadmissible. However, the woman appealed that decision, arguing that the start date of May 2017 should trigger the clock.

State statue says “no complaint may be filed after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred.” For the court, the key word is “occurred.”

“In this case, the alleged quid pro quo sexual harassment ‘occurred’ when (the vice president) supposedly punished (the woman) at work for refusing his demand to make their relationship more sexual,” the appellate court stated. “Logically and thus textually, an employer injures the employee by denying a deserved promotion as an instrument of sexual harassment. That moment ‘occurred’ when Tri-Modal allegedly did not promote the deserving (woman) because of sexual harassment.  That was in March 2017.  So (the woman’s) injury ‘occurred’ in March 2017, according to the plain meaning of the word ‘occurred.’”

That decision was upheld by the appeals court in April 2020. The Supreme Court agreed to hear the case that August.

In July, the high court overturned the two lower courts’ decision, finally resolving the two-month difference in the interpretation of the statute of limitations start date that could make or break the case.

Essentially, the Supreme Court found that “the statute of limitations begins to run at the point when an employee knows or reasonably should know of the employer’s allegedly unlawful refusal to promote the employee” rather than the exact date of the actual denial of promotion. However, the Supreme Court ruled that neither Tri-Modal’s date of March 2017 nor the plaintiff’s date of May 2017 are persuasive since neither address when the plaintiff knew or should have known about the promotion.

Who holds the burden of proof regarding when the plaintiff knew or should have known? According to the Supreme Court, that burden falls on Tri-Modal and will likely be central to the case when it returns to the trial court. LL

WW Williams

Tyson Fisher joined Land Line Magazine in March 2014. An award-winning journalist and tireless researcher, his news reports, features and blogs bring depth to our editorial content, backed with solid detail. Tyson is a lifelong Kansas Citian.