Donna Worth v. City of Kalispell ( 2010 )

FILED
NOT FOR PUBLICATION AUG 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DONNA L. WORTH, No. 09-35587
Plaintiff - Appellant, D.C. No. 9:08-cv-00145-JCL
v.
MEMORANDUM *
CITY OF KALISPELL, a municipal corp.;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Jeremiah C. Lynch, Magistrate Judge,** Presiding
Submitted July 19, 2010 ***
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Donna Worth appeals pro se from the district court’s order denying her
motion for reconsideration or other relief from summary judgment in her
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to the jurisdiction of the magistrate judge.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
employment discrimination action. We have jurisdiction under 28 U.S.C. § 1291.
We review for abuse of discretion the denial of a motion for reconsideration,
MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir. 2006), and for
relief from judgment under Federal Rule of Civil Procedure 60(b), Casey v.
Albertson’s Inc., 362 F.3d 1254, 1257 (9th Cir. 2004). We affirm.
The district court did not abuse its discretion in denying reconsideration of
summary judgment on Worth’s gender discrimination and retaliation claims for
failure to exhaust under Title VII of the Civil Rights Act of 1964. See B.K.B v.
Maui Police Dept., 276 F.3d 1099 (9th Cir. 2002). Even when liberally construed,
the facts and circumstances alleged in support of Worth’s charge of disability
discrimination did not encompass her gender discrimination and retaliation claims.
See id. at 1100 (exhaustion limited to allegations of discrimination in a complaint
that are “like or reasonably related to” allegations contained in the charge).
The district court did not abuse its discretion in denying reconsideration of
summary judgment on Worth’s disability discrimination claims for failure to file a
timely charge of discrimination under the Americans with Disabilities Act. Santa
Maria v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000). Even under a continuing
violations or hostile work environment theory, Worth had to file her charge within
300 days of her termination. 42 U.S.C. §§ 2000e-5(e)(1) and 12117(a). Worth’s
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argument that she first learned about defendants’ disability discrimination during
arbitration is unpersuasive, and defendants’ alleged unrelated fraud also did not toll
the limitations period. See Santa Maria, 202 F.3d at 1176-77, 1179 (equitable
tolling inapplicable if plaintiff knows of possible claim and equitable estoppel only
applicable if defendants conceal facts concerning discrimination charge).
The district court did not abuse its discretion in denying reconsideration of
summary judgment on Worth’s political affiliation discrimination claims because
there is no federal jurisdiction over unfair labor practices claims related to union
activity brought by an employee of a political subdivision of a state or a city under
the National Labor Relations Act. See Int’l Union of Operating Eng'rs v. County
of Plumas, 559 F.3d 1041, 1044 (9th Cir. 2009).
The district court also did not abuse its discretion in denying relief from
judgment because Worth failed to establish grounds for such relief under Federal
Rule of Civil Procedure 60(b). See SEC v. Coldicutt, 258 F.3d 939, 942 (9th Cir.
2001) (discussing Rule 60(b) requirements).
Worth’s remaining contentions are unpersuasive, and we do not consider
issues or evidence raised for the first time on appeal. See Foti v. City of Menlo
Park, 146 F.3d 629, 638 (9th Cir. 1998).
AFFIRMED.
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