O'Donnell v. Vencor Inc. , 465 F.3d 1063 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALICE FAYE O’DONNELL, 
Plaintiff-Appellant,
v.
VENCOR INC., aka First Healthcare
Corporation dba Kachina Point
Health Center; KACHINA POINT No. 05-15687
HEALTHCARE; DOES, 1 through 25,
inclusive; RED, WHITE, AND BLUE  D.C. No.
CV-01-01836-EHC
ENTITIES, INCLUSIVE, OPINION
Defendants-Appellees,
and
KINDRED NURSING CENTER WEST,
LLC,
Defendant.

Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Argued and Submitted
August 15, 2006—San Francisco, California
Filed October 10, 2006
Before: William C. Canby, Jr., David R. Thompson, and
Michael Daly Hawkins, Circuit Judges.
Per Curiam Opinion
17365
O’DONNELL v. VENCOR INC. 17369
COUNSEL
Nicholle Harris and Aeryn Heidermann, Law Students, and
Willie Jordan-Curtis, Supervising Attorney, University of Ari-
zona, Tucson, Arizona, for the plaintiff-appellant.
Thomas L. Hudson, Phoenix, Arizona, for the defendants-
appellees.
OPINION
PER CURIAM:
Pro se plaintiff-appellant Alice Faye O’Donnell
(“O’Donnell”) appeals the district court’s dismissal of her
employment discrimination claims as time-barred. O’Donnell
asserts that the district court should have applied the doctrines
of equitable tolling, equitable estoppel, or laches to excuse her
filing her second action after the statute of limitations had
expired.
We review de novo whether a claim is barred by a statute
of limitations. See Santa Maria v. Pac. Bell, 202 F.3d 1170,
1175 (9th Cir. 2000). Because the facts here are undisputed,
we review de novo whether to apply equitable tolling. See id.We review for an abuse of discretion the district court’s deci-
sion whether to apply equitable estoppel. See id. at 1176. We
review de novo whether laches is available as a matter of law
and for an abuse of discretion the district court’s decision
whether to apply laches to the facts. See In re Beaty, 306 F.3d
914, 920-21 (9th Cir. 2002).
17370 O’DONNELL v. VENCOR INC.
O’Donnell originally timely filed her first complaint assert-
ing a claim under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, et seq., (“Title VII”), and a claim under
the Age Discrimination in Employment Act, 29 U.S.C. § 621,
et seq., (“ADEA”). She filed that complaint within ninety
days after the issuance of her right-to-sue letter by the EEOC.
See 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(e). The defen-
dants thereafter filed for bankruptcy and an automatic stay
was issued. During the pendency of the stay, O’Donnell’s first
complaint was dismissed without prejudice for failure to pros-
ecute. She did not appeal that dismissal. After the bankruptcy
automatic stay was lifted, O’Donnell filed a second complaint
against the defendants on September 27, 2001, repeating her
Title VII and ADEA claims. In an amendment to that second
complaint, which amendment she filed December 1, 2003,
O’Donnell advanced new claims under the Equal Pay Act, 29
U.S.C. § 206 (“EPA”). We affirm the district court’s dis-
missal of O’Donnell’s Title VII and ADEA claims, but
reverse and remand for further proceedings on O’Donnell’s
EPA claims.
I. Title VII and ADEA Claims
[1] O’Donnell’s claims under Title VII and the ADEA are
untimely because she filed her second complaint more than
ninety days after the EEOC’s issuance of her right-to-sue let-
ter. See 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(e).
O’Donnell’s second complaint does not “relate back” to her
first complaint because her second complaint was not an
“amendment” to her first complaint, but rather a separate fil-
ing. See FED. R. CIV. P. 15(c)(2).
[2] Assuming, arguendo, that the doctrine of equitable toll-
ing could be applied to O’Donnell’s situation, it would not
save her Title VII or ADEA claims. In instances where a com-
plaint is timely filed and later dismissed, the timely filing of
the complaint does not “toll” or suspend the ninety-day limi-
tations period. See Minnette v. Time Warner, 997 F.2d 1023,
O’DONNELL v. VENCOR INC. 17371
1027 (2d Cir. 1993); see also Wei v. State of Hawaii, 763 F.2d
370, 372 (9th Cir. 1985) (per curiam). “In such cases, dis-
missal of the original suit, even though labeled as without
prejudice, nevertheless may sound the death knell for the
plaintiff’s underlying cause of action if the sheer passage of
time precludes the prosecution of a new action.” Chico-Velez
v. Roche Prods., Inc., 139 F.3d 56, 59 (1st Cir. 1998). Con-
trary to O’Donnell’s assertion, it is irrelevant that the dis-
missal of her first complaint without prejudice was
“involuntary” rather than “voluntary.” See Wei, 763 F.2d at
372; see also 8 JAMES WM. MOORE, ET AL., MOORE’S FEDERAL
PRACTICE § 41.50(7)(b) (3d ed. 1997).
[3] Here, the ninety-day limitations period had run before
the defendants filed for bankruptcy and the automatic stay
was issued. At that point, there was no longer any time left in
the ninety-day limitations period to equitably toll. Therefore,
equitable tolling would not save O’Donnell’s Title VII or
ADEA claims.
[4] The district court did not abuse its discretion in not
applying equitable estoppel based on O’Donnell’s alleged
reliance on the defendants’ notice of the bankruptcy automatic
stay. “Equitable estoppel focuses primarily on the actions
taken by the defendant in preventing a plaintiff from filing
suit . . . .” Santa Maria, 202 F.3d at 1176. “A finding of equi-
table estoppel rests on the consideration of a non-exhaustive
list of factors, including: (1) the plaintiff’s actual and reason-
able reliance on the defendant’s conduct or representations,
(2) evidence of improper purpose on the part of the defendant,
or of the defendant’s actual or constructive knowledge of the
deceptive nature of its conduct, and (3) the extent to which the
purposes of the limitations period have been satisfied.” Id.Equitable estoppel is not warranted here because there is no
“evidence of improper purpose on the part of the defendant,
or of the defendant’s actual or constructive knowledge of the
deceptive nature of its conduct.” Id.17372 O’DONNELL v. VENCOR INC.
[5] The defendants’ motion to dismiss based on the statute
of limitations is not barred by laches despite its filing over
two years after O’Donnell’s second complaint. To success-
fully establish laches, a party must show that (1) there was
inexcusable delay in the assertion of a known right and (2) the
party asserting laches has been prejudiced. See Miller v.
Glenn Miller Prods., Inc., 454 F.3d 975, 997 (9th Cir. 2006).
Here, O’Donnell was not prejudiced by the delay because she
had timely notice of the statute of limitations defense from the
defendants’ answer and the delay was reasonable because it
was due to multiple stays entered while the parties pursued
settlement talks and O’Donnell sought an attorney.
[6] We, therefore, affirm the district court’s dismissal of
O’Donnell’s Title VII and ADEA claims as untimely.
II. Equal Pay Act Claims
O’Donnell’s EPA claims, by contrast, are timely because
(1) the December 1, 2003 amendment asserting the EPA
claims “relates back” to the second complaint filed September
27, 2001; and (2) equitable tolling applies, making the second
complaint timely under the EPA statute of limitations.
[7] A later pleading “relates back” to the original pleading
if the claims in the later pleading “arose out of the conduct,
transaction, or occurrence set forth or attempted to be set forth
in the original pleading.” FED. R. CIV. P. 15(c)(2). Although
O’Donnell first raised her EPA claims in the December 1,
2003 amendment, the facts alleged in O’Donnell’s second
complaint filed September 27, 2001 in support of her Title
VII and ADEA claims — that her hours had been given to a
male van driver, that a part-time male driver with less senior-
ity had been promoted and paid a higher salary, and that she
was required to perform more tasks for less pay than male van
drivers — also form the basis for the EPA claims she asserted
in her December 1, 2003 amendment. Because the allegations
and type of evidence necessary for O’Donnell to succeed on
O’DONNELL v. VENCOR INC. 17373
her EPA claims are identical to what she alleged in her second
complaint, see 29 U.S.C. § 206(d)(1) (specifying that jobs are
equal if their performance requires “equal skill, effort, and
responsibility” and they are performed under “similar work-
ing conditions”), the December 1, 2003 amendment “relates
back” to the second complaint which O’Donnell filed Septem-
ber 27, 2001. See In re Markus, 313 F.3d 1146, 1150-51 (9th
Cir. 2002); In re Dominguez, 51 F.3d 1502, 1510 (9th Cir.
1995). Moreover, the second complaint gave the defendants
adequate notice of the substance of O’Donnell’s EPA claims
and thus the defendants cannot show prejudice from the addi-
tion of the EPA claims arising out of the same facts. See San-
tana v. Holiday Inns, Inc., 686 F.2d 736, 739 (9th Cir. 1982).
[8] Because O’Donnell’s assertion of her EPA claims
relates back to the time she filed her second complaint, her
EPA claims were timely filed if the statute of limitations for
those EPA claims was equitably tolled. We hold that it was.
[9] Limitations periods are “customarily subject to ‘equita-
ble tolling,’ ” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,
95 (1990), unless tolling would be “inconsistent with the text
of the relevant statute,” United States v. Beggerly, 524 U.S.
38, 48 (1998). Equitable tolling is generally applied in situa-
tions “where the claimant has actively pursued his judicial
remedies by filing a defective pleading during the statutory
period, or where the complainant has been induced or tricked
by his adversary’s misconduct into allowing the filing dead-
line to pass.” Irwin, 498 U.S. at 96 (footnotes omitted). How-
ever, the Supreme Court in Young v. United States, 535 U.S.
43, 50-51 (2002), also applied equitable tolling in the situa-
tion where, as here, a bankruptcy petition erected an auto-
matic stay under 11 U.S.C. § 362 which prevented the
claimant from taking steps to protect her claim.
[10] Here, the defendants created the situation which
impeded O’Donnell from pursuing her EPA claims, and they
cannot now claim to be prejudiced by the application of equi-
17374 O’DONNELL v. VENCOR INC.
table tolling. See Baldwin County Welcome Ctr. v. Brown,
466 U.S. 147, 152 (1984) (“absence of prejudice is a factor to
be considered in determining whether the doctrine of equita-
ble tolling should apply once a factor that might justify such
tolling is identified”). Because nothing in the EPA precludes
equitable tolling of the limitations period, Young, 535 U.S. at
47, we hold that the period of time commencing upon the
issuance of the automatic stay and ending thirty days after
notice of termination of the stay, see 11 U.S.C. § 108(c)(2),
must be excluded from the applicable EPA limitations period,
which is two years for a general violation and three years for
a “willful” violation, 29 U.S.C. § 255(a). See also United
States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) (“Principles of equi-
table tolling usually dictate that when a time bar has been sus-
pended and then begins to run again upon a later event, the
time remaining on the clock is calculated by subtracting from
the full limitations period whatever time ran before the clock
was stopped.”).
[11] Each discriminatory paycheck O’Donnell received
constitutes a separate violation of the EPA with a cause of
action accruing (and the running of the limitations period
commencing) upon the receipt of the discriminatory pay-
check. See Bazemore v. Friday, 478 U.S. 385, 395 (1986)
(Brennan, J., concurring in part, joined by all other members
of the Court) (“Each week’s paycheck that delivers less to a
[disadvantaged class member] than to a similarly situated
[favored class member] is a wrong actionable under Title VII
. . . .”); Bartelt v. Berlitz Sch. of Languages of Am., Inc., 698
F.2d 1003, 1007 (9th Cir. 1982) (describing 29 U.S.C. § 255as rendering employer who commits willful violation under
EPA liable for back pay for up to three years before suit is
filed); Rural Fire Prot. Co. v. Hepp, 366 F.2d 355, 361-62
(9th Cir. 1966) (finding that cause of action accrued at end of
each pay period when minimum and maximum wage provi-
sions of 29 U.S.C. §§ 206, 207 violated). Therefore, although
the EPA violations may have been continuing, the continuing
violation doctrine does not permit O’Donnell to recover back
O’DONNELL v. VENCOR INC. 17375
pay for discriminatory pay periods outside the applicable stat-
ute of limitations period. See Pollis v. New Sch. for Soc.
Research, 132 F.3d 115, 118-19 (2d Cir. 1997); Knight v.
Columbus, 19 F.3d 579, 582 (11th Cir. 1994); Ashley v.
Boyle’s Famous Corned Beef Co., 66 F.3d 164, 168 (8th Cir.
1995) (en banc), abrogation on other grounds recognized by
Madison v. IBP, Inc., 330 F.3d 1051, 1056-57 (8th Cir. 2003);
Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 351 (4th
Cir. 1994); Gandy v. Sullivan County, 24 F.3d 861, 865 (6th
Cir. 1994); E.E.O.C. v. McCarthy, 768 F.2d 1, 3 n. 4 (1st Cir.
1985).
[12] We therefore reverse the district court’s dismissal of
O’Donnell’s EPA claims and remand for further proceedings
to determine whether the defendants violated the EPA and, if
so, to determine the applicable statute of limitations and the
period and amount of back pay recoverable. See 29 U.S.C.
§ 255(a).
AFFIRMED IN PART, REVERSED AND
REMANDED IN PART.