Kimberly Bender v. Clark County School District

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 12, 2020
• Docket: 19-15055
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KIMBERLY BENDER, No. 19-15055

Plaintiff-Appellant, D.C. No. 2:18-cv-00063-JCM-PAL v.

CLARK COUNTY SCHOOL DISTRICT, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted May 7, 2020** Portland, Oregon

Before: WATFORD and HURWITZ, Circuit Judges, and BATTAGLIA,*** District Judge.

Kimberly Bender, a special education teacher for Clark County School

District (“CCSD”) in Nevada, was notified in writing on April 10, 2014 by CCSD

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Anthony J. Battaglia, United States District Judge for the Southern District of California, sitting by designation. Page 2 of 3

that she was suspended without pay. This decision was affirmed by an arbitrator

approximately two years later, and Bender was terminated on April 15, 2016. On

April 12, 2018, Bender sued CCSD, asserting 42 U.S.C. § 1983 claims for violation

of the Contracts Clause of the United States Constitution and for denial of procedural

due process, in addition to state law claims. The district court dismissed the action,

finding it was barred by the statute of limitations. On appeal, Bender challenges only

the dismissal of her § 1983 claims. We have jurisdiction under 28 U.S.C. § 1291 and

affirm.

Section 1983 claims “are governed by the forum state’s statute of limitations

for personal injury actions.” See Knox v. Davis, 260 F.3d 1009, 1012 (9th Cir. 2001).

Nevada’s relevant statute of limitations is two years. See Nev. Rev. Stat.

§ 11.190(4)(e). Federal law, however, determines when a claim accrues. See Wallace

v. Kato, 549 U.S. 384, 388 (2007); Bagley v. CMC Real Estate Corp., 923 F.2d 758,

760 (9th Cir. 1991). A cause of action accrues under federal law when a potential

claimant either is aware or should be aware of the existence and source of his or her

injury. See Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999). The contested issue

in this case is when the § 1983 claims accrued.

The district court correctly concluded that Bender’s § 1983 claims accrued no

later than April 2014. To determine the event that commenced the running of the

statute of limitations in an employment action, we must first “identify precisely the Page 3 of 3

‘unlawful employment practice’ of which [the plaintiff] complains.” Delaware State

Coll. v. Ricks, 449 U.S. 250, 257 (1980). For both of Bender’s claims, the last

“unlawful employment practice” of which she complains is the denial of a hearing

before her suspension and the recommendation of her dismissal in April 2014.1

Ricks, 449 U.S. at 257. In addition, Bender alleges she was denied the right to union

representation at the investigatory interviews and admonishment meetings between

June 2013 and January 2014. Because the foregoing events occurred by April 2014,

Bender knew or should have known of the unlawful employment practices forming

the basis of her claims by then.2 Fink, 192 F.3d at 914; see Ricks, 449 U.S. at 257.

Finally, the district court did not abuse its discretion by denying leave to

amend because no amendment could cure the defects in Bender’s complaint. See

Bell v. City of Kellogg, 922 F.2d 1418, 1425 (9th Cir. 1991).

AFFIRMED.

1 Because Bender’s complaint alleged that she was “denied the right to a pre- termination hearing,” she argues on appeal that her claims did not accrue until she received notice of her termination on April 15, 2016. But, her complaint detailed her “termination date” as “April 25, 2014” and noted that she received a hearing in “January 2016.” 2 Bender’s right to arbitration does not change this result because it was evident the suspension was final, and Bender was not going to receive a pre-suspension hearing through the arbitration. See Ricks, 449 U.S. at 261 (“[T]he pendency of a grievance, or some other method of collateral review of an employment decision, does not toll the running of the limitations periods.”).