Sandra Holmes v. Tacoma Public School District ( 2018 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        SEP 4 2018
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    SANDRA HOLMES,                                  No.    17-35673
    Plaintiff-Appellant,            D.C. No. 3:16-cv-05317-BHS
    v.
    MEMORANDUM*
    TACOMA PUBLIC SCHOOL DISTRICT
    NO. 10; JOHN/JANE DOES 1-5,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Western District of Washington
    Benjamin H. Settle, District Judge, Presiding
    Submitted August 30, 2018**
    Seattle, Washington
    Before: McKEOWN, W. FLETCHER, and GOULD, Circuit Judges.
    Sandra Holmes appeals the district court’s order granting summary judgment
    in favor of Tacoma Public School District No. 10 (“the District”) in an action
    asserting claims of wrongful termination and discrimination on the basis of her
    *
    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).
    race, disability, and age. Because the parties are familiar with the facts, we do not
    repeat them here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
    The district court did not err in concluding that Holmes’ Title VII claims are
    barred by her failure to exhaust her administrative remedies. A plaintiff alleging
    employment discrimination must file a charge with the Equal Employment
    Opportunity Commission (“EEOC”) within 300 days “after the alleged unlawful
    employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1); Nat’l Passenger R.R.
    Corp. v. Morgan, 
    536 U.S. 101
    , 104–05 (2002). Similarly, a plaintiff alleging
    disability discrimination must file a charge with the EEOC within 300 days of the
    alleged discriminatory act. 42 U.S.C. § 12117.
    We agree with the EEOC that Holmes’ charge was untimely. Holmes’ filing
    with the EEOC alleged that the discrimination took place from February 10, 2013
    through February 7, 2014. She did not file her charge until October 5, 2015—well
    over 300 days later. On appeal, Holmes alleges that her termination did not
    become final until an administrative law judge upheld her termination in 2015, but
    she cites no authority for this proposition, and did not include the administrative
    law judge’s determination in her charge to the EEOC.
    Holmes’ failure to timely file her charge to the EEOC is not necessarily
    fatal. As the Supreme Court has held, the “time period for filing a charge is
    subject to equitable doctrines such as tolling or estoppel.” 
    Morgan, 536 U.S. at 2
    113. “Equitable tolling is, however, to be applied only sparingly.” Nelmida v.
    Shelly Eurocars, Inc., 
    112 F.3d 380
    , 384 (9th Cir. 1997). For example, the
    Supreme Court has permitted equitable tolling when “the statute of limitations was
    not complied with because of defective pleadings, when a claimant was tricked by
    an adversary into letting a deadline expire, and when the EEOC’s notice of the
    statutory period was clearly inadequate.” Scholar v. Pac. Bell, 
    963 F.2d 264
    , 268
    (9th Cir. 1992) (collecting cases). But “[c]ourts have been generally unforgiving
    . . . when a late filing is due to claimant’s failure ‘to exercise due diligence in
    preserving [her] legal rights.’” 
    Id. (quoting Irwin
    v. Dep’t of Veterans Affairs, 
    498 U.S. 89
    , 96 (1990)).
    Here, Holmes presented no evidence that she diligently pursued her rights
    under the statute. As the district court noted, Holmes could have filed a claim with
    the EEOC that would have been held in suspension until her union rights were
    investigated. Holmes’ assertion that she was unable to file a charge with the
    EEOC until October 2015 because the District instructed her not to discuss her
    termination with anyone else while she was on paid administrative leave is belied
    by Holmes’ own admission that she spoke to other employees about her case while
    her union representative was investigating the matter on her behalf. For those
    reasons, the district court properly held that Holmes is entitled to equitable tolling,
    and did not err in granting summary judgment on Holmes’ federal discrimination
    3
    claims because Holmes failed to timely file her charge with the EEOC.
    Finally, the district court did not err in granting the District’s motion for
    summary judgment with respect to Holmes’ claims under the Washington Law
    Against Discrimination (“WLAD”) because Holmes failed to comply with
    Washington’s notice claim statute, Wash. Rev. Code § 4.96.010(1). Holmes
    contends that this statute only applies to common-law tort claims, not claims
    created by statute. But Holmes cites no authority for this proposition, and in fact
    Washington courts have held that similar notice claim statutes are applicable to
    state statutory causes of action. See, e.g., Blair v. Wash. State Univ., 
    108 Wash. 2d 558
    , 576 (1987). Nor did Holmes’ notice with respect to her federal claims, by
    filing a charge to the EEOC, satisfy notice requirements with respect to her state-
    law claims under the WLAD. Accordingly, the district court did not err in granting
    summary judgment in favor of the District on Holmes’ WLAD claims.
    AFFIRMED.
    4
    

Document Info

Docket Number: 17-35673

Filed Date: 9/4/2018

Precedential Status: Non-Precedential

Modified Date: 4/18/2021