Statute of Limitations is Not Jurisdictional; But is Also Not an Affirmative Defense

Long Beach Community College District (2009) PERB Decision No. 2002-E (Issued on 1/30/09)

The saga continues. The facts in this case arose back in 2001. The case first came before the Board in 2003 on a dismissal. In that case, Long Beach Community College District (2003) PERB Decision No. 1564 (Long Beach CCD I), the Board considered the effect of the parties’ non-binding grievance procedure on the statute of limitations for filing a charge under EERA. Under existing precedent at that time, the Board did not recognize the doctrine of “equitable tolling” as it considered the limitations period a jurisdictional prerequisite.

After examining the language of EERA and considering the public policy behind the statute, the Board in Long Beach CCD I held that the statute of limitations under EERA was not jurisdictional, but rather an affirmative defense that had to be raised or was waived. Long Beach CCD I thus overturned PERB precedent that had existed since 1991, that had held the limitations period was jurisdictional. (Interestingly, the 1991 decision had overturned prior precedent holding that the limitations period was not jurisdictional.)

Based on Long Beach CCD I, a complaint was eventually issued in the case, it was heard by an ALJ, and eventually the case found its way back to the Board. This time around, the district urged the current Board to overturn Long Beach CCD I. The Board declined and instead affirmed that the limitations period under EERA is not jurisdictional.

However, the Board also held that the timeliness of a charge is not an affirmative defense, but rather remains an element of proof for the charging party. Thus, while Long Beach CCD II affirmed Long Beach CCD I on the holding that the limitations period is not jurisdictional, it overruled Long Beach CCD I on the holding as to whether timeliness constitutes an affirmative defense—finding that it does not.

Comments:

Although this decision only considered the statute of limitations period under EERA, there is little doubt in my mind that the Board will apply the same reasoning to all the other statutes administered by PERB, since the statutory language is similar.

I think this decision ends the debate over whether the statute of limitations under the statutes administered by PERB are jurisdictional – they are not. Some employers had hoped that the new Board would use this opportunity to overturn Long Beach CCD I before it really took hold. Instead, the new Board went out of its way to affirm that prior decision.

With respect to the holding that the timeliness of a charge is not an affirmative defense, I suspect the practical effect of that holding will be minor. Similarly, the holding that the limitations period is not jurisdictional has little effect by itself. The real effect will come from the revival of the equitable tolling doctrine, and perhaps other equitable remedies, that will work to save charges that otherwise would be untimely.