Petition for Writ of Certiorari — California Department of Youth Authority v. Douglas

Supreme Court, U.S.

FILED

NO 1154 6 APR 1 9 2002

OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

CALIFORNIA DEPARTMENT OF YOUTH AUTHORITY,

Petitioner,

V.

DOSSEY DOUGLAS, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEAL FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

BILL LOCKYER

Attorney General of the State of California

PAMELA SMITH-STEWARD

Chief Assistant Attorney General

DAVID S. CHANEY

Senior Assistant Attorney General

DENNIS W. DAWSON

MIGUEL A. NERI

Supervising Deputy Attorneys General

*T. MICHELLE LAIRD

Deputy Attorney General

*Counsel of Record

110 West "A" Street, Suite 1100

San Diego, CA 92101

P.O. Box 85266

San Diego, CA 92186-5266

Telephone: (619) 645-2323

Fax: (619) 645-2581

Counsel for Petitioner

PPO SDMA PIRI TT EIT

QUESTIONS PRESENTED

1. Whether time-barred disability discrimination

claims based on an express denial of employment for failure to

meet a hiring standard are revived by the continuing violation

doctrine where the plaintiff re-applies for the position during the

limitations period and while the hiring standard is still in effect,

but there is no application of the hiring standard to the plaintiff

within the limitations period.

2. Whether the Ninth Circuit contradicted U.S.

Supreme Court decisional authority, stating that collateral

appeals of an employment decision do not serve to toll

limitations periods, by concluding that the plaintiff's claims

were timely under the continuing violation doctrine because he

acted reasonably during the limitations period by pursuing

collateral appeals of a denial of employment and re-applying for

the position, rather than filing suit.

il

LIST OF PARTIES

Petitioner before this Court and appellee in the

proceedings below is the California Department of Youth

Authority.

Respondent before this Court and appellant in the

proceedings below is Dossey Douglas.

pe ee ee

iil

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI l

OPINION OR JUDGMENT BELOW l

STATEMENT OF JURISDICTION 2

STATUTES INVOLVED 2

STATEMENT OF THE CASE 4

REASONS FOR GRANTING THE WRIT 7

I. THE CIRCUMSTANCES BY WHICH

THE CONTINUING VIOLATION

DOCTRINE MAY EXTEND

STATUTORILY-IMPOSED

LIMITATION PERIODS IN

EMPLOYMENT DISCRIMINATION

CASES IS AN IMPORTANT FEDERAL

QUESTION UPON WHICH

CERTIORARI WAS GRANTED AND

IS CURRENTLY PENDING IN THIS

COURT 7

Il. THE NINTH CIRCUIT’S DECISION

CONFLICTS WITH SETTLED

SUPREME COURT PRECEDENT

CONCERNING THE APPLICATION

OF LIMITATION PERIODS AND THE

CONTINUING VIOLATION

DOCTRINE IN EMPLOYMENT

DISCRIMINATION CASES 9

iv

TABLE OF CONTENTS (continued)

Page

A. In Applying The Statute Of Limitations In

A Discrimination Case, The Proper Focus

Is On The Time That The Alleged

Discriminatory Act Occurred, And The

Continuing Violation Doctrine Is

- Inapplicable Where The Plaintiff Fails To

Identify Any Discriminatory Act Occurring

Within The Limitations Period

Il. THENINTH CIRCUIT HAS CREATED

NEW GROUNDS FOR TOLLING THE

STATUTORY LIMITATIONS PERIOD

CONCLUSION

2 ASAE DD ig A et RU OS ata

19

TABLE OF AUTHORITIES

Page

Cases

Bazemore v. Friday

478 U.S. 385 (1986) 9,10, 14

Chardon v. Fernandez

454 US. 6 (1981) 9-11

Delaware State College v. Ricks

449 U.S. 250 (1980) 9-11, 14, 16-18

Douglas v. California Department of Youth Authority

271 F.3d 812 (9th Cir. 2001) i, 16

Electrical Workers v. Robbins & Myers, Inc.

429 U.S. 229 (1976) 17

Galloway v. General Motors Serv. Parts Operations

78 F.3d 1164 (7th Cir. 1996) 16, 17

Havens Realty Corp. v. Coleman

455 U.S. 363 (1982) 10, 13, 14

Lorance v. AT&T Technologies, Inc.

490 U.S. 900 (1989) 10, 14

Morgan v. National Railroad Passenger Corp.

232 F.3d 1008 (9th Cir. 2000)

cert. granted, 533 U.S. 927, (June 25, 2001) 7,8

vi

TABLE OF AUTHORITIES (continued)

Page ;

United Air Lines, Inc. v. Evans

431 U.S. 553 (1977) 10-14 :

United States v. Kubrick :

444 U.S. 111 (1979) 15

Zenith Radio v. Hazeltine Research

401 U.S. 321 (1971) 11

Statutes

28 United States Code

§ 1254(1) 2

§ 1331 2

§ 1343 2

§ 1367 2

29 United States Code

§ 701 3

§ 794 2,4 |

42 United States Code

§ 1981 17

§ 12101 3

§ 12112(a) 4

§ 2000e-5 2

§ 2000e-S(e) 10, 17

§ 2000e-5(e)(1) Sr Be,

California Code of Civil Procedure

§ 340(3) 3, 11

IN THE SUPREME COURT OF THE UNITED STATES

No.

CALIFORNIA DEPARTMENT OF YOUTH AUTHORITY,

Petitioner,

v.

DOSSEY DOUGLAS, Respondent.

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari

issue to review the order and opinion of the United States Court

of Appeals for the Ninth Circuit-entered on November 14, 2001

and amended on November 26, 2001. Douglas v. California

Department of Youth Authority, 271 F.3d 812 (9th Cir. 2001).

OPINION OR JUDGMENT BELOW

The opinion of the Court of Appeals below is

published at 27) F.3d 812 (9th Cir. 2001) and is reprinted in the

Appendix at App. A-1 through App. A-21.

The Memorandum and Order of the United States

District Court for the Eastern District of California (Shubb,

Chief D.J.) and the corresponding Judgment, dated August 27,

1999, are reprinted at App. B-22 through App. B-37. The

transcript of the oral argument on August 23, 1999 before the

United States District Court for the Eastern District of

California (Shubb, Chief D.J.) is reprinted at App. C-38 though

App. C-76.

STATEMENT OF JURISDICTION

Respondent filed a complaint in the United States

District Court for the Eastern District of California, citing

federal jurisdiction under 28 U.S.C. §§ 1331, 1343 and 1367, 29

U.S.C. § 794 and 42 U.S.C. § 2000e-5. Petitioner’s motion for

summary judgment was thereafter granted and Judgment was

entered on August 27, 1999. On appeal by Respondent, the

Ninth Circuit reversed and remanded the case to the district

court on November 14, 2001 (amended November 26, 2001).

On January 7, 2002, the Ninth Circuit sua sponte

ordered the parties to file briefs by January 28, 2002, addressing

the question whether the Ninth Circuit should rehear the case en

banc. Both parties filed the requested briefs by the deadline of

January 28, 2002. On February 4, 2002, the U.S. Supreme

Court granted Petitioner an extension of time to file a petition

for writ of certiorari to and including April 13, 2002. The

Supreme Court’s February 4, 2002 Order is reprinted at App. D-

77. Ina published decision, the Ninth Circuit denied rehearing

en banc on April 12, 2002.

The jurisdiction of this Court to review the judgment

of the Ninth Circuit rests on 28 U.S.C. § 1254(1).

STATUTES INVOLVED

Respondent filed a complaint alleging disability

discrimination under Title I of the Americans with Disabilities

:

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Act, 42 U.S.C. § 12101, et seq. ("ADA") and Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. ("Section

504").

The statutes at issue concern the limitations periods

for filing claims under the ADA and Section 504. The

limitations period for bringing ADA claims is imposed by

Section 706(e) of Title VII, 42 U.S.C. § 2000e- >€)1), which

reads, in pertinent part, as-follows:

A charge under this section shall be filed

[with the Equal Employment Opportunity

Commission ("EEOC")] within one

hundred and eighty days after the alleged

unlawful employment practice occurred ...,

except [when] the person aggrieved has

initially instituted proceedings with a State

or local agency with authority to grant or

seek relief from such practice ..., such

charge shall be filed [with the EEOC]

within three hundred days after the alleged

unlawful employment practice occurred ....

Since there is no stated limitations period for bringing

Section 504 claims, the limitations period for bringing such

claims in California is borrowed from the California state

statute of limitations for filing personal injury claims, California

Code of Civil Procedure section 340(3), requiring an action to

be filed:

Within one year ... for injury to or for the

death of one caused by the wrongful act or

neglect of another ....

The substantive federal laws upon which the suit is

based are Title I of the ADA and Section 504 of the

Rehabilitation Act of 1973. Title I of the ADA, 42 U.S.C. §

12112(a), reads, in pertinent part, as follows:

No covered entity shall discriminate against

a qualified individual with a disability

because of the disability of such individual

in regard to job application procedures, the

hiring, advancement, or discharge of

employees, employee compensation, job

training, and other terms, conditions, and

privileges of employment.

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794,

provides, in pertinent part:

No otherwise qualified individual with a -

disability in the United States, as defined in

section 7(20) [of this title], shall, solely by

reason of his or her disability, be excluded

from the participation in, be denied the

benefits of, or be subjected to

discrimination under any program or

activity receiving Federal financial

assistance ....

STATEMENT OF THE CASE

Respondent Dossey Douglas completed an application

in 1994 to participate in a written exam as the first step in the

process to be hired as a "Group Supervisor" by Petitioner, the

California Department of the Youth Authority ("CYA"). The

Group Supervisor position is a peace officer classification

within state civil service. Group Supervisors are responsible for

the security and custody of youthful offenders within CYA

correctional institutions. On March 1, 1996, CYA denied

employment to Respondent as a "Group Supervisor" and

communicated its hiring decision, and the reason for it, to him

in writing on that date. The express reason for the denial of

employment was due to Respondent’s inability to meet CYA’s

minimum color vision standards. Under CYA’s hiring

standards, evidence of a color vision deficiency (commonly

referred to as "color blindness"), is a permissible basis upon

which to reject an applicant for the Group Supervisor position.

Group Supervisor applicants must demonstrate through post-

employment-offer vision testing that they possess normal color

vision or only a mild color vision deficiency to be eligible for

appointment to the position.

Respondent sought reversal of CYA’s hiring decision

through the California State Personnel Board’s ("SPB") appeals

process and through CYA’s internal discrimination complaint

unit. These efforts failed to result in a reversal of CYA’s hiring

decision, and the SPB’s decision denying Respondent’s petition

for rehearing before that body was issued on July 30, 1997.

On April 18, 1997, 413 days after Respondent was

rejected for hire, he filed an EEOC charge of discrimination. In

his EEOC charge, Respondent alleged:

"I applied for a position as a Group

Supervisor (Correctional Officer) in

November 1994 and was rejected because

of a disability... ."

"I appealed the rejection. ..."

"I believe I have been discriminated against

because of my disability."

On May 7, 1998, Respondent was issued a right-to-

sue letter by the EEOC. On July 6, 1998, Respondent filed suit

against CYA in the district court, alleging that he was

unlawfully denied employment in violation of the ADA and

Section 504.

The district court granted summary judgment for

CYA on the grounds that: (1) Respondent failed to file an

administrative charge of discrimination with the Equal

Employment Opportunity Commission within the requisite 300-

day limitations period following his rejection for hire on March

1, 1996, as a prerequisite to filing suit under the ADA and; (2)

Respondent failed to file a Rehabilitation Act claim in federal

court within the requisite one-year limitations period following

his rejection for hire on March 1, 1996. The district court

specifically rejected Respondent’s continuing violation theory

based on the continued existence of the hiring standard. It also

rejected Respondent’s arguments that the continuing violation

doctrine was triggered when he re-submitted a written

application for the Group Supervisor position in late 1996 or

when he made inquiries about whether the standard was in

effect in late 1998, because Respondent failed to demonstrate

any application of CYA’s color vision standard to him within

the applicable limitations period. Respondent appealed the

summary judgment against him.

Ina published decision, the Ninth Circuit reversed the

judgment of the district court, holding that the continuing

violation doctrine rendered Respondent’s ADA and Section 504

claims timely -- even though Respondent was not rejected for

hire by reason of the color vision standard after March 1, 1996

-- because: (1) he was "exposed" to the color vision standard

during the limitations period when he re-submitted a written

application for the Group Supervisor position in October, 1996,

for the 1996-1998 window period for hiring; and, alternatively,

(2) he acted reasonably during the limitations period by

pursuing collateral avenues of appeal identified to him and by

reapplying for the Group Supervisor position, rather than by

filing a discrimination complaint in court or with the EEOC.

The Ninth Circuit applied the continuing violation

doctrine to revive Respondent’s time-barred March 1, 1996

denial of employment claim based on its identification of the

case as one involving a "systemic discrimination policy," and by

holding that "repeated efforts" by an applicant to gain

employment "extends the accrual of the limitations period in

such a case."/

REASONS FOR GRANTING THE WRIT

I.

THE CIRCUMSTANCES BY WHICH

THE CONTINUING VIOLATION

DOCTRINE MAY EXTEND

STATUTORILY-IMPOSED

LIMITATION PERIODS IN

EMPLOYMENT DISCRIMINATION

CASES IS AN IMPORTANT

FEDERAL QUESTION UPON WHICH

CERTIORARI WAS GRANTED AND

IS CURRENTLY PENDING IN THIS

COURT

This Court has granted a writ of certiorari to review

a decision of the U.S. Court of Appeals for the Ninth Circuit in

Morgan v. National Railroad Passenger Corp., 232 F.3d 1008

(9th Cir. 2000), cert. granted, 533 U.S. 927, (June 25, 2001)

1. Until his opposition to petitioner’s summary

judgment motion, respondent had not alleged that he re-

submitted a written application for the Group Supervisor

position in the late 1996, nor did he contend that a “systemic

policy of discrimination" was at issue in the case.

(No. 00-1614). The question certified for review in Morgan is

whether the Ninth Circuit correctly held that a plaintiff who has

knowingly aliowed the statute of limitations to lapse on alleged

violations of federal anti-discrimination statutes may

- nevertheless sue on such time-barred claims whenever incidents

within the limitations period are "sufficiently related" to the

otherwise time-barred claims.

The Morgan case concerns a question similar in

principle to the first question presented by the instant Petition.

In deciding Morgan, this Court will review and analyze the

same statutes and legal precedents, such as those pertaining to

rules of accrual, whether and when a discrete act of

discrimination triggers the limitations period, and the

application of the continuing violation doctrine to extend

limitations periods, as it would if a writ of certiorari were

granted in this case. Furthermore, the same public policy

considerations are at stake in both cases, such as what level of

enforcement of procedural requirements specified by the anti-

discrimination statutes will afford predictable results for

litigants inemployment discrimination cases while effectuating

the statutes’ remedial purpose of eradicating discrimination.

Thus, the importance of the federal question presented

herein and its need for explication has been acknowledged by

this Court through its decision to grant a writ of certiorari in

Morgan. This Court’s decision in Morgan also has the potential

to impact this case because of the similarity of the underlying

legal issues presented for review.

Il.

THE NINTH CIRCUIT’S DECISION

CONFLICTS WITH SETTLED

SUPREME COURT PRECEDENT

CONCERNING THE APPLICATION

OF LIMITATION PERIODS AND THE

CONTINUING VIOLATION

DOCTRINE IN EMPLOYMENT

DISCRIMINATION CASES

The Ninth Circuit’s decision is in conflict with settled

Supreme Court precedent holding that, for purposes of

determining the date on which the limitation period accrues in

a discrimination case, the relevant date is when the individual

is aware of the unlawful acts causing the injury. Bazemore v.

Friday, 478 U.S. 385 (1986); Chardon v. Fernandez, 454 US.

6 (1981); Delaware State College v. Ricks, 449 U.S. 250

(1980). In this case, Respondent alleged that he was-

discriminated against when CYA rejected him for the position

of Group Supervisor because he failed to meet its color vision

standard. This discrete event occurred and was communicated

to Respondent on a date certain, March 1, 1996, and on no other

date. Nonetheless, the Ninth Circuit disagreed with the district

court’s finding that Respondent’s claims for discriminatory

denial of employment accrued on that date and that, therefore,

his late-filed claims were time-barred. The Ninth Circuit

applied the continuing violation doctrine to revive the time-

barred claims based on Respondent’s submission of a new

application for the position while the hiring standard was in

effect and during a window period for hiring that extended from

1996 through 1998 and, thus, into the limitations period. The

Ninth Circuit reached this conclusion although the hiring

standard was not enforced to deny Respondent employment

within the limitations period. The application of the continuing

violation doctrine by the Ninth Circuit in this manner cannot be

10

reconciled with U.S. Supreme Court precedent as set forth in

Bazemore, 478 U.S. 385, Ricks, 449 U.S. 250, and United Air

Lines, Inc. v. Evans, 431 U.S. 553 (1977). See also, Lorance v.

AT&T Technologies, Inc., 490 U.S. 900 (1989); and, Havens

Realty Corp. v. Coleman, 455 U.S. 363 (1982).

A case that should have involved the straightforward

application of settled law to simple facts involving a discrete

failure to hire was utilized by the Ninth Circuit to expand the

continuing violation doctrine to make actionable time-barred

claims where no act of discrimination was alleged to have

occurred within the limitations period. This case is an

appropriate one for a grant of certiorari because there is a need

for a national standard regarding the application of rules of

accrual and the continuing violation doctrine in employment

discrimination cases.

A. In Applying The Statute Of Limitations In A

Discrimination Case, The Proper Focus Is On The

Time That The Alleged Discriminatory Act

Occurred, And The Continuing Violation Doctrine

Is Inapplicable Where The Plaintiff Fails To

Identify Any Discriminatory Act Occurring

Within The Limitations Period

It is well-settled that for purposes of determining the

date on which the limitation period begins to run in a

discrimination case, the relevant date is when the individual is

aware of or should be aware of the unlawful acts that caused the

injury. Chardon, 454 US. at 8; Ricks, 449 U.S. at 258. Once

the limitations period begins to run, a plaintiff has, in most

cases, 300 days to file a charge of discrimination with the

EEOC as a prerequisite to bringing suit under federal anti-

discrimination statutes such as Title VII and the ADA, 42

U.S.C. § 2000e-5(e), and, in California, one-year to file suit

1]

under the Rehabilitation Act. CAL. Civ. Proc. CODE § 340(3)

(West 1999).

Although nothing precludes the application of the

traditional continuing violation doctrine to discrimination cases,

that doctrine provides that only successive unlawful acts may

reset the date on which the limitations period begins to run.

Zenith Radio v. Hazeltine Research, 401 U.S. 321, 338-39

(1971). Consistent with the traditional doctrine, this Court

rejects its application in discrimination cases where the plaintiff

fails to identify one or more discriminatory acts occurring

within the limitations period.

In Ricks, 449 U.S. 250, this Court first had to "identify

precisely the ‘unlawful employment practice’ of which [Ricks]

complains" to determine the timeliness of his EEOC complaint.

Id. at 257. Ricks alleged that he was denied tenure because of

his national origin. /d. at 252. Ricks’ complaint was held

time-barred because he did not file an EEOC complaint within

the requisite time period after the tenure decision was made

known to him. /d. at 261, n.13; Accord, Chardon, 454 U.S. at

8. In rejecting application of the continuing violation doctrine

based on Ricks’ continued employment with the college after

the denial of tenure, this Court noted that "the only alleged

discrimination occurred ... at the time the tenure decision was

made and communicated to Ricks." Ricks, 449 U.S. at 258. In

rejecting Ricks’ continuing violation argument, this Court

explicitly noted his failure to allege the occurrence of

discriminatory acts within the limitations period in his

complaint. Jd. at 504.

In support of its holding in Ricks, this Court relied

upon an earlier decision, United Air Lines, Inc. v. Evans, 431

U.S. 553 (1977). In Evans, the plaintiff was forced to resign as

a flight attendant when she married in 1968 under her

employer’s then-current policy of refusing to allow its female

12

flight attendants to be married. Jd. at 554. After her employer’s

policy changed, Evans sought reinstatement on several

occasions but was unsuccessful. Jd. at 555. After she was

rehired as a new employee in 1972, she filed discrimination

charges alleging that her employer’s seniority system was

discriminatory because it failed to credit her for her prior

service. Id. at 555-556.

This Court noted that, although the resignation-upon-

marriage policy had been determined in another case to be

violative of Title VII, the Evans plaintiff was not a party to that

case and she did not initiate any proceedings of her own either

within the limitations period following her 1968 forced-

resignation or following her employer’s act of failing to

reinstate her seniority credit upon her rehire. Jd. at 554-555.

Thus, the Court held, these claims were time-barred. Jd. at 554-

555.

In an effort to save her claim, the Evans plaintiff

alleged that her employer’s seniority system gave present effect

to a past act of discrimination and that it therefore constituted a

continuing violation based on the continuing impact of her

employer’s resignation-upon-marriage policy on her current

seniority status. /d. at 578. The Court rejected this theory,

stating that the employer:

...was entitled to treat that past act as lawful

after [Evans] failed to file a [timely] charge

of discrimination .... A discriminatory act

which is not made the basis for a timely

charge is the legal equivalent of a

discriminatory act which occurred before

the statute was passed. It may constitute

relevant background evidence in a

proceeding in which the status of a current

practice is at issue, but separately

13

considered, it is merely an unfortunate -

event in history which has no present legal

consequences. Id. at 578.

Thus, in Evans, this Court focused on the alleged

unlawful acts by the employer (i.e. forcing Evans to resign and

failing to credit her seniority status upon her rehire), and on

whether those acts occurred within the limitations period to

determine whether the plaintiff presented a timely claim, rather

than focusing on the more ephemeral "present effects" concept.

As such, the Court rejected any application of the continuing

violation doctrine to save the plaintiff's time-barred claims

based on the continuing status of the plaintiff within the

seniority system.

Similarly, in a housing discrimination case, this Court

dismissed the claims of one of several plaintiffs as untimely

where she failed to allege the occurrence of discriminatory acts

against her within the limitations period. Havens Realty Corp.

v. Coleman, 455 U.S. 363, 380-381 (1982). In so doing, the

Court reversed the decision of an appellate court that had

allowed her to proceed on a continuing violation theory. /d. at

380-381. In Havens, other plaintiffs’ claims were permitted to

go forward, but only because they filed their complaints within

the 180-day limitation period following the last asserted

occurrence of an alleged unlawful practice by the landlord. /d.

at 380-381. Havens thus affirms this Court’s view that unless

an asserted act of discrimination occurs within the limitations

period, the continuing violation doctrine is_ entirely

inapplicable.

This Court has applied the continuing violation

doctrine to extend limitations periods under limited

circumstances. For example, where an employer paid less

salary to black employees than to similarly-situated white

employees, this Court held that the suit was timely-filed even

14

though the salary structure was initiated outside the limitations

period because each time a paycheck delivered a lesser salary to

a black employee than to a white employee, a discriminatory act

occurred. Bazemore, 478 U.S. at 395-396.

Likewise, in Lorance v. AT&T Technologies, Inc., 490

U.S. 900, 912, n.5 (1989), this Court noted that a facially

discriminatory policy can be challenged even years after its

inception because it "discriminates each time it is applied,” in

recognition that it is the employer’s application of that policy

that constitutes the unlawful act.”

The circumstances that called for the application of

the continuing violation doctrine in Bazemore and Lorance

cannot be reconciled with those present here. This case does

not involve ongoing discrimination but, rather, it involves a

discrete decision on March 1, 1996, to deny the plaintiff

employment based on his inability to meet a minimum

qualification for the job. Thus, the Evans, Ricks and Havens

Realty line of cases control. Respondent’s awareness of his

rejection for hire because of his failure to meet CYA’s hiring

standard triggered his duty to assert his rights under the federal

anti-discrimination laws. Thus, when Respondent failed to

timely file his claims, CYA’s March 1, 1996 hiring decision

became the legal equivalent of a discriminatory act which

occurred before the ADA or Rehabilitation Act were passed.

The Ninth Circuit’s decision essentially creates an

open-ended statute of limitations for applicants who fail to meet

2. Congress narrowed the ruling in Lorance to allow

challenges to facially neutral seniority systems at any time after

their adoption, but did not otherwise alter the court’s rulings

that the statute of limitations runs from the date of an

occurrence of an unlawful act.

15

stated minimum hiring standards. This Court has explained the

rationale behind statutes of limitations as follows:

Statutes of limitations, which ‘are found

and approved in all systems of enlightened

jurisprudence,’ [citation], represent a

pervasive legislative judgment that it is

unjust to fail to put the adversary on notice

to defend within a specified period of time

and that ‘the right to be free of stale claims

in time comes to prevail over the right to

prosecute them.’ ([Citation.] These

enactments are statutes of repose; and

although affording plaintiffs what the

legislature deems a reasonable time to

present their claims, they protect

defendants and the courts from having to

deal with cases in which the search for truth

may be seriously impaired by the loss of

evidence, whether by death or

disappearance of witnesses, fading

memories, disappearance of documents, or

otherwise. [Citations.] United States v.

Kubrick, 444 U.S. 111, 117 (1979).

The resulting effect of the decision below is that

applicants who have been denied employment in the past may

revive time-barred claims merely by re-submitting a written

application for the same position on a future date, so long as the

hiring standard is still in effect. Further, it allows the plaintiff

to dictate when the statute accrues and leaves employers

potentially vulnerable to suit years after employment decisions

are made. This is contrary to the policy rationale behind

statutes of limitation, which is to put defendants on notice of

adverse claims and to prevent plaintiffs from sleeping on their

rights.

16

Ill.

THE NINTH CIRCUIT HAS

CREATED NEW GROUNDS FOR

TOLLING THE STATUTORY

LIMITATIONS PERIOD

In an alternative holding, the court of appeals stated

that, even if it applied a strict notice requirement to the facts, it

would find that the continuing violation doctrine saved

Respondent’s claims because "we cannot say that Douglas acted

unreasonably by pursuing each avenue of appeal identified to

him, and by reapplying for the position." Douglas v. California

Department of Youth Authority, 271 F.3d at 824, n.13, citing,

Galloway v. General Motors Serv. Parts Operations, 78 F.3d

1164, 1167 (7th Cir. 1996); App. A-20 through App. A-21. The

"avenue of appeal" referred to by the court was CYA’s internal

discrimination unit and the California State Personnel Board.

It is undisputed that Respondent appealed to these entities in an

effort to obtain a direct reversal of CYA’s March 1, 1996 hiring

decision.

The Ninth Circuit’s alternative holding is essentially

the impermissible "tolling" of the limitations period during the

pursuit of administrative appeals which has been expressly

disapproved of by this Court. Ricks, 449 U.S. at 261. In Ricks,

the plaintiff argued that his pursuit of a grievance regarding the

employment decision at issue tolled the limitations period such

that his claims did not actually accrue until he was notified of

the unfavorable results of the grievance. This Court disagreed,

stating:

[t]he grievance procedure, by its nature, is

a remedy for a prior decision, not an

opportunity to influence that decision

before it is made. .... the pendency of a

17

grievance, or some other method of

collateral review of an employment

decision, does not toll the running of the

limitations period. /d. at 261, citing,

Electrical Workers v. Robbins & Myers,

Inc., 429 U.S. 229 (1976).

Thus, the period within which Ricks should have filed

his claims having passed, this Court held that his 42 U.S.C. §

1981 and Title VII employment discrimination claims were

time-barred. Jd. at 262. Apparent in the Court’s decision was

its recognition of the deference to be paid federally enacted

limitation periods and to the concept that limitation periods

normally commence when the employer’s decision is made. /d.

at 256-257, 259; 42 U.S.C. § 2000e-5(e).

In this case, the court of appeals utterly failed to

consider Ricks. Its alternate holding, that the continuing

violation doctrine revived Respondent’s late claims under the

"reasonableness" test espoused in Galloway, was no more than

an exercise in specious reasoning.» Under the facts, the holding

3. Galloway concerned a pattern of harassing conduct

over time, where the time-barred conduct was recognized as

actionable only in light of the conduct occurring within the

limitations period. Galloway, 78 F.3d at 1167-1168. The

“reasonableness” factor discussed in Galloway concerns the

question of whether and when, under the circumstances, it is

reasonable to expect a plaintiff to recognize that he 1s a victim

of actionable injury. /d. at 1166-1168. Here, Respondent did

not allege a pattern of harassing conduct over time. To the

contrary, he alleged a discrete hiring decision communicated to

him on a date certain. The fact that Respondent re-applied for

the position has no analytical counterpart in Galloway which

would require a different result from Ricks.

18

in Ricks controls and, if it had been followed by the Ninth

Circuit, should have resulted in a finding that Respondent’s

pursuit of collateral methods of review of Petitioner’s decision

to deny him employment did not extend the limitations period.

The Ninth Circuit’s holding subverts Ricks and re-opens the

door for the extension of limitation periods based on the

pendency of administrative appeals, a limitations-avoiding

tactic already disapproved-of by this Court.

19

CONCLUSION

For the reasons stated, the petition for certiorari

should be granted.

Dated: April 12, 2002

Respectfully submitted,

BILL LOCKYER

Attorney General of the State of California

PAMELA SMITH-STEWARD

Chief Assistant Attorney General

DAVID S. CHANEY

Senior Assistant Attorney General

| DENNIS W. DAWSON

MIGUEL A. NERI

Supervising Deputy Attorney General

OW Me feud

*T. MICHELLE LAIRD

Deputy Attorney General

*Counsel of Record

Counsel for Petitioner

| TML:tlg

SA1998CV1060

sits