Schneider v. San Diego County

24 F. App'x 744

Opinions

MEMORANDUM

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A.

In order to preserve her federal claims, Schneider needed to file her complaints such that her state proceedings were terminated within 300 days after the last alleged unlawful act. See EEOC v. Dinuba Medical Clinic, 222 F.3d 580, 585 (9th Cir.2000). Schneider’s complaints with the California Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC) were filed on June 30, 1997 and she received a right to sue letter terminating state proceedings on July 1, 1997 — over 300 days after the last alleged unlawful act. Accordingly, her claims under the federal statutes may go forward only if equitable tolling is applied.

Schneider argues that her failure to meet the 300 day deadline for completion of state procedures was because: (1) the EEOC advised her over the telephone in February 1997 that the statute of limitations for her claim had already passed; and (2) in March 1997, she took her complaint to an attorney who kept her file for a month and then declined to represent her. Schneider does not cite any authority supporting the proposition that delay by an attorney deciding whether to take a case may support a grant of equitable tolling. As for reliance on mistaken advice, which may justify equitable tolling, Scholar v. Pacific Bell, 963 F.2d 264 (9th Cir.1992); Gates v. Georgia-Pacific Corporation, 492 F.2d 292 (9th Cir.1974), some specific evidence that such advice was given is required to survive summary judgment. See Celotex Carp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Schneider failed to provide any specific evidence to corroborate her assertion that she received erroneous advice from the EEOC.

Because Schneider failed to produce sufficient evidence to support equitable tolling, we affirm the district court’s dismissal of all of her federal claims. Schneider may proceed only under her state law claims, consistent with the remainder of this disposition.

B.

The district court rejected Schneider’s continuing violation theory based on the rule that continuing violations usually cannot extend to periods after an employee is terminated. See Grimes v. City and County of San Francisco, 951 F.2d 236, 238-39 (9th Cir.1991); Williams v. Owens-Illinois, 665 F.2d 918, 924 (9th Cir.1982). The district court based its decision on the mistaken assumption that Schneider was terminated on September 3, 1993, the date she left work. Schneider was not “out of reach” of the Department, see Williams, until July 2, 1996, when her right to the first vacancy in the Department ended.

The California Supreme Court recently stated that “an employer’s persistent failure to reasonably accommodate a disability, or to eliminate a hostile work environment targeting a disabled employee, is a continuing violation if the employer’s actions are (1) sufficiently similar in kind ...; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” Richards v. CH2M Hill, Inc., 26 Cal.4th 798, 111 Cal. Rptr.2d 87, 29 P.3d 175, 190 (2001).¹

Whether the July 1996 letter was the culmination of a course of conduct including Schneider’s claims of denial of accommodations and related retaliation under the California Fair Employment and Housing Act, Cal. Govt.Code § 12940 et seq. (FEHA), is a triable issue of fact. We therefore reverse the district court’s dismissal of Schneider’s disability related FEHA claims based on untimely filing.

The district court, however, properly dismissed Schneider’s allegations of age and sex discrimination. Schneider makes no specific allegation of age discrimination other than a 1986 statement made by officer Steppe, one of her supervisors. Similarly, Schneider’s claims of sex discrimination and related retaliation were based on allegations from 1992. Schneider does not allege sufficient facts to bring either the age or sex discrimination complaints within a continuing violation theory extending into the statute of limitations period. Thus we affirm the district court’s dismissal of Schneider’s age and sex related claims under the FEHA.

C.

We affirm district court’s dismissal of all claims against Vicki Markey because “Plaintiff does not ... provide any evidence that Markey played any role in the decision to terminate plaintiff’ and the last act affecting Schneider in which Markey participated was the review of the March 14, 1995 letter. Schneider has failed to state a claim against Markey for which she timely filed a complaint.

D.

The district court further dismissed Schneider’s disability related FEHA claims because it found that she failed to carry her burden of proving that she is a person who can perform the essential functions of her job, Cal. Gov’t Code § 12940, because she did not explain her application for Social Security Disability Income (SSDI) and disability related retirement benefits. Cleveland v. Policy Management Systems Corporation, 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999). California law of judicial estoppel applies to potential conflicts between statements in disability benefits applications and claims to be a qualified person with a disability under the FEHA. Bell v. Wells Fargo Bank, 62 Cal.App.4th 1382, 1385-86, 73 Cal.Rptr.2d 354 (1998). ‘“Judicial estoppel’ will be invoked only in situations where the litigant has taken positions so clearly inconsistent that one necessarily excludes the other.” Id.; see also Cleveland, 526 U.S. at 802-07, 119 S.Ct. 1597 (explanation of an application for disability benefits is required only in “some cases” where “an earlier SSDI claim may turn out genuinely to conflict with an ADA claim,” “the two claims do not inherently conflict”).

Schneider’s disability benefits applications are not clearly inconsistent with her litigation position that she could have worked in the supervision position she requested. Applicants for SSDI are not required to state in the form they fill out that they are unable to work in any job. Schneider stated in her SSDI application, and proved to the satisfaction of the ALJ, that she was not able to perform her past relevant work which she defined as “Probation Officer: Investigator.” That statement does not conflict with her FEHA disability discrimination case, alleging that she could perform the duties of the supervisor position she was requesting.

Neither does Schneider’s application for retirement benefits conflict with her discrimination complaint. There, she stated her “permanent incapacity” was due in part to a “psychiatric disability ... due [to] work factors such as harassment and retaliation from work supervisor.” It is possible to reconcile these statements with her discrimination allegation, because her application leaves open the possibility that she would have been able to work absent the harassment and retaliation. Therefore, we reverse the district court’s dismissal of Schneider’s claims of disability related discrimination under the FEHA.

CONCLUSION

The district court’s judgment dismissing all of Schneider’s federal claims as untimely filed is AFFIRMED. The district court’s dismissal of Schneider’s claims under the FEHA alleging age and sex discrimination is also AFFIRMED. The district court’s dismissal of the FEHA claims alleging failure to provide reasonable accommodations and related retaliation is REVERSED, and we REMAND to the district court to consider whether to exercise supplemental jurisdiction over these remaining state claims under 28 U.S.C. § 1367(c)(3). The parties shall bear their own costs.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as may be provided by Ninth Circuit Rule 36-3.

1

. With regard to the last prong of the test, the court stated that " ‘permanence’ in the context of an ongoing process of accommodation of disability, or ongoing disability harassment, should properly be understood to mean the following: that an employer’s statements and actions make clear to a reasonable employee that any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will be futile.” Id.