Petition for Writ of Certiorari — Placer County v. Gutowsky

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97-247 JUL 1 6 1997

No. office OF THE CLERK

In The

Supreme Court of the United States

+

October Term, 1996

COUNTY OF PLACER,

Petitioner,

VS.

YOVANA GUTOWSKY,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

CRIS C. VAUGHAN

Counsel of Record

PLACER COUNTY

COUNSEL’S OFFICE

Attorney for Petitioner

County Administrative Center

175 Fulweiler Avenue

Auburn, California 95603

(916) 889-4044

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ervices, inc.

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QUESTIONS PRESENTED

I. Does a 42 U.S.C. § 1983 employment discrimination

cause of action accrue at the time of the discriminatory act?

II. Does the “continuing violation” doctrine used in Title

VII' claims extend the accrual date for a 42 U.S.C. § 1983

Monell’ ernployment discrimination action to last day of

employment, particularly when the last act of alleged

discrimination did not fall within the limitations period?

1. 42 U.S.C. § 2000e, ef seg.

2. Monell v. Department of Social Services of New York, 436 U.S. 658,

98 S. Ct. 2018 (1978).

i

LIST OF PARTIES

The names of all parties to the proceedings in the Court

whose judgment is sought to be reviewed here appear in the

caption of the case. There is no parent or subsidiary company

of any party to be listed.

lil

TABLE OF CONTENTS

Questions Presented .................ccccecccee.

ee ong ood vad bose ooo eennnnn,

Reasons for Granting the Writ ....................

I. Does A 42 U.S.C. § 1983 Employment

Discrimination Cause Of Action Accrue At The

Time Of The Discriminatory Act? ...........

II. Does The “Continuing Violation” Doctrine Used

In Title VII Claims Extend The Accrual Date For

A 42 U.S.C. § 1983 Monell Employment

Discrimination Action To Last Day Of

Employment, Particularly When The Last Act Of

Alleged Discrimination Did Not Fall Within The

Limitations Period? .......................

noo a cacao ncewccecn.

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iv

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Acha v. Beam, 570 F.2d 57 (2d Cir. 1978) .......... 7

Association Against Discrimination and Employment, Inc.

v. City of Bridgeport, 647 F.2d 256 (2d Cir. 1981),

cert. denied, 455 U.S. 988, 102 S. Ct. 1611, 71 L.

ee ha eer rer er rer rere ee 7

Chardon v. Fernandez, 454 U.S. 6, 70 L. Ed. 2d 6, 102

Re SEED: wicca cue ceaeeud beeareransee 3, 4, 5, 6

Compton v. Ide, 732 F.2d 1424 (9th Cir. 1984) ...... 5

Delaware State College v. Ricks, 449 U.S. 250, 66 L.

Be. 24 431, 101 S. Ct. GP CIGRD onc ice ccecee. 4,6

Dixon v. Anderson, 921 F.2d 212 (6th Cir. 1991) .... 7,8

Gutowsky v. County of Placer, 108 F.3d 256, 259 (9th

a See cca keen ke cae s Rate er es an 8

Hoesterey v. City of Catheral City, 945 F.2d 317 (9th Cir.

1991), cert. denied, 504 U.S. 910, 112 S. Ct. 1941,

SED Bn Se ED ho ono ek teased bateavues 5

Lavelle v. Listi, 611 F.2d 1129 (Sth Cir. 1980) ...... 7

McCoy v. San Francisco City and County, 14 F.3d 28

Cl Se Se Waka wheukieccecetsnevareee eres 5

Contents

Page

McDougal v. County of Imperial, 942 F.2d 668 (9th Cir.

PROT 464. desde eae eee ee eee 5

McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir. 1982) ... 7

Monell v. Department of Social Services of New York,

436 U.S. 658, 98 S. Ct. 2018 (1978) ........ er eee

Norco Construction, Inc. v. Kings County, 801 F.2d 1143

Ce Ge: TP kvs hwcansaedins ee aeewerGueeee 5

Perez v. Laredo Junior College, 706 F.2d 731 (Sth Cir.

SWOPE 6 isk bk dade aka eee ee ee 7

Pike v. City of Mission, 731 F.2d 655 (10th Cir. 1984)

PETES T TCT Te eT ee ee ee re ee 8

Trotter v. International Longshoreman's Warehousemens’

Union, 704 F.2d 1141 (9th Cir. 1983) ........... :

United Air Lines, Inc. v. Evans, 431 U.S. 553, 52 L. Ed.

PEL, Be Be GA. Te CONTE? es kv cceeoeene enone 4,6

Williams v. Owens Illinois, Inc., 665 F.2d 918 (9th Cir.

1982), cert. denied, 459 U.S. 971, 103 S. Ct. 302, 74

les Ss Se Re CED 5 ican ode beesa ace ewees 7

Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938 (1985)

vi

Contents

Statutes Cited:

oe UO. | ERO) sh ccac bie t¥eescneeerenseas

RS USS 0 GG knee can cere eee eee ee

42 U.S.A. § SRO OE Os i ceceseae veces

Cal. Civ. Proc, Come See: nee an vos oe oe ee eee

United States Constitution Cited:

rites ASRORGINOUE oodkésdacceek een

APPENDIX

Appendix A — Order of the United States Court of

Appeals for the Ninth Circuit Filed April 17, 1997

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Appendix B — Judgment of the United States Court of

Appeals for the Ninth Circuit Filed March 6, 1997

esvpeeecoa ee oea see ae eeee se ee ee ce seaoaes a eaetaetee 622 2 ee

Appendix C — Opinion of the United States Court of

Appeals for the Ninth Circuit Filed March 6, 1997

Se@eoeouns Cease snsogogae eS ee OCC SOS aS ESE B Oe Cee CO BESS Se

Page

passim

to

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3a

4a

Contents

Appendix D — Reporter’s Transcript, United States Court

of Appeals, Court’s Ruling on Motion for Summary

Judgment Dated August 18, 1995 ...............

Appendix E — Order After Hearing of the United States

District Court for the Eastern District of California Filed

ST eee tn need See

Page

17a

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Petitioner, County of Placer, respectfully petitions for a writ

of certiorari to review the judgment of the United States Court

of Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 108 F.3d

256, and is reproduced in the appendix filed herewith (App. B,

3a-16a). Petitioner filed a petition for rehearing with suggestion

for rehearing en banc on March 20, 1997. The order denying

the petition was issued by the Court of Appeals on April 17,

1997, and is reproduced in the Appendix filed herewith at (App.

A, la-2a). The order after hearing of the District Court is

reproduced in the Appendix at (App. E, 25a-26a).

STATEMENT OF JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTE INVOLVED

The pertinent provision, 42 U.S.C. § 1983, is set forth below:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of

Columbia, subjects, or causes to be

subjected, any citizen of the United States

or other person within the jurisdiction thereof

to the deprivation of any rights, privileges,

Or immunities secured by the Constitution

and laws, shall be liable to the party injured

in an action at law, suit in equity, or other

proper proceeding for redress. For the

~.-. . ~..-purposes ofthis-section,-anyActref Cofgress-— —-

applicable exclusively to the District of

Columbia shall be considered to be a statute

of the District of Columbia.

STATEMENT OF THE CASE

Respondent brought an action alleging civil rights violations

pursuant to 42 U.S.C. § 1983 (hereinafter “§ 1983”). The

complaint made no Title VII claims. Respondent claimed sexual

harassment and gender discrimination in her complaint, which

named the County of Placer as the sole defendant. The complaint

made no claim of wrongful termination. Respondent’s complaint

purported to state a cause of action for relief alleging equal

protection violations pursuant to the Fourteenth Amendment of

the United States Constitution and provisions of the California

Constitution. Respondent further alleged a violation of her due

process rights pursuant to the Fifth and Fourteenth Amendments

of the United States Constitution and provisions of the California

Constitution.

Following discovery, Petitioner County of Placer, brought

a motion for summary judgment, which was granted and a

subsequent judgment entered in favor of the County. The District

Court found all of Respondent’s claims to be time barred. (E.R.°

p. 474). Respondent appealed the District Court’s ruling on the

gender discrimination claim only, and did not appeal the court’s

ruling on her sexual harassment claim. (Brief of Respondent, p.

4). On appeal the Ninth Circuit Court of Appeals reversed on

the grounds the continuing violation doctrine extended the

accrual date of plaintiff's § 1983 cause of action to her last day

of employment. The district court had found plaintiff’s complaint

to be seventeen (17) months late.

3. Petitioner will use Respondent's designation of “E.R.” to reference

the Excerpt of Record on Appeal filed by Respondent in the court of appeals.

PP I 4 sl +

3

~ Gutowsky became a County employee in the Department

of Public Works in March of 1982. After a temporary job, she

became the permanent, full time employee in the position of

communications clerk, for the Department of Public Works Road

Division, Tahoe office. Gutowsky held the position she

remained in until May 26, 1993, when she left work and did

not return. Gutowsky filed her complaint on May 24, 1994.

(E.R. p. 1).

Gutowsky claims to have made repeated requests to promote

to position as a road maintenance worker or equipment operator.

The communications clerk position was not a promotional

position, (E.R. p. 122, Is. 11-24), and in order for Gutowsky

to obtain either a road maintenance job or equipment operator

job, she would be required to file an application, undergo the

examination process, and be placed on an eligible list, all

pursuant to the County’s Civil Service Commission rules which

have been in place in the County since well before Gutowsky

became a County employee. (E.R. p. 123, Is. 5-26). Gutowsky

never submitted an application to become either a road

maintenance worker or an equipment operator for the County

of Placer whether in the Lake Tahoe area or otherwise. (E.R.

p. 469).

Gutowsky contends she was discriminated against in not

being placed in an equipment operator or road maintenance

worker position. She further contends that males were hired or

promoted into these positions.

REASONS FOR GRANTING THE WRIT

This court should grant the writ for two reasons:

First, the Ninth Circuit decision conflicts with the relevant

decisions of this court. Chardon v. Fernandez, 454 U.S. 6, 70 L.

4

Ed. 2d 6, 102 S. Ct. 28 (1981); Delaware State College». Ricks;

449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980); United

Air Lines, Inc. v. Evans, 431 U.S. 553, 52 L. Ed. 571, 97 S. Ct.

1885 (1977). The decision establishes the date of accrual for

§ 1983 employment discrimination claim differently than that

for any other § 1983 claim.

Second, there is a split of authority between the Federal

Circuit Courts of Appeal and confusion within the circuits on

the important Federal question of whether the Title VII

continuing violation doctrine is applicable to a § 1983

employment discrimination action. If so, does the continuing

violation doctrine extend the accrual date to the last day of

employment when the last act of alleged discrimination did not

fall within the limitations period. The Ninth Circuit held that

the accrual date for such an action is extended to the last day of

employment notwithstanding the fact that the complaint was

filed seventeen (17) months after the expiration of the statute of

limitations for the last discriminatory act (which occurred twenty

nine (29) months before the complaint was filed).

I.

DOES A 42 U.S.C. § 1983 EMPLOYMENT

DISCRIMINATION CAUSE OF ACTION ACCRUE AT THE

TIME OF THE DISCRIMINATORY ACT?

Section 1983 actions are characterized as personal injury

actions for purposes of identifying the applicable statute of

limitations. Wilson v. Garcia, 471 U.S. 261, 276, 105 S. Ct. 1938

(1985). Thus, § 1983 actions must be brought within the time

specified by the forum state’s statute of limitations for personal

injury torts. In California, the applicable statute of limitations

is Cal. Civ. Proc. Code Sec. 340(3), which provides for a

limitations period of one year from the date the cause of action

accrues.

er

—_—_--

2

-— ———

— -

Federal law determines when a cause of action accrues and

the statute of limitations begins to run for a § 1983 claim.

McDougal v. County of Imperial, 942 F.2d 668, 672 (9th Cir.

1991); Norco Construction, Inc. v. King County, 801 F.2d 1143,

1145 (9th Cir. 1986); Compton v. Ide, 732 F.2d 1424, 1432 (9th

Cir. 1984). A federal claim accrues when the plaintiff “knows

or has reason to know of the injury which is the basis of the

action.” Norco v. King, supra, at 1145, quoting Trotter v.

International Longshoreman’s Warehousemens’ Union, 704 F.2d

1141, 1143 (9th Cir. 1983).

As with any other § 1983 claim, it is the discriminatory act

and the knowledge on the part of the plaintiff which serves as

the basis for identifying when the federal claim accrues for a

§ 1983 employment discrimination claim. As recently as 1994,

the Ninth Circuit Court of Appeals held that the commencement

of the limitations period for a civil rights action occurs upon

notice. In McCoy v. San Francisco City and County, 14 F.3d 28,

29 (9th Cir. 1994), the Ninth Circuit cited Hoesterey v. City of

Catheral City, 945 F.2d 317 (9th Cir. 1991), cert. denied, 504

U.S. 910, 112 S. Ct. 1941, 118 L. Ed. 546 (1992), for the

Proposition that the touchstone for determining the

commencement of the limitations period is notice. Thus, “the

cause of action generally accrues when the plaintiff knows or

has reason to know of the injury which is the basis of his action.”

Hoesterey v. City of Catheral City, at 319. As the District Court

pointed out, in applying this standard to the present case,

plaintiff’s claim was filed 17 months late where the accrual date

was the date of the last discriminatory act.

The Ninth Circuit decision to extend the accrual date of a

§ 1983 employment discrimination cause of action is contrary

to this court’s decisions in Chardon v. Fernandez, 454 U.S. 6,

70 L. Ed. 2d 6, 102 S. Ct. 28 (1981) (limitations period applicable

to employment discrimination action under 42 U.S.C. § 1983

6

held to run from time of notice thatappointment wouid terminate

rather than from termination date), Delaware State College v.

Ricks, 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980)

(the proper focus is on the time of the discriminatory act, not

the point at which the consequences of the act become painful,

id. at 258, “mere continuity of employment, without more is

insufficient to prolong the life of a cause of action for

employment discrimination” /d., at 257), and United Air Lines,

Inc. v. Evans, 431 U.S. 553, 52 L. Ed. 571, 97S. Ct. 1885 (1977)

(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. /d. at 558.)

This Court made clear in Chardon, and Evans that the focus

is upon the last act of discrimination as the date of accrual of

the cause of action. The Ninth Circuit has disregarded this

Court's decisions and instead substituted the last day of

employment as the date of accrual regardless of when the last

discriminatory act occurred. Such an approach may be

appropriate if a wrongful termination claim was being made,

but no such claim was being made here. This important federal

question of the date of accrual of a § 1983 employment

discrimination cause of action requires clarification at this time

for the benefit of all of the federal circuits and litigants.

—_- = So

.

tan aa epee

DOES THE “CONTINUING VIOLATION”

DOCTRINE USED IN TITLE VII CLAIMS EXTEND THE

ACCRUAL DATE FOR A 42 U.S.C. § 1983 MONELL

EMPLOYMENT DISCRIMINATION ACTION TO LAST

DAY OF EMPLOYMENT, PARTICULARLY WHEN THE

LAST ACT OF ALLEGED DISCRIMINATION DID NOT

FALL WITHIN THE LIMITATIONS PERIOD?

There is great deal of disparity in the treatment given to the

“continuing violation” doctrine among the circuits. The circuit

courts have differed over whether the continuing violation

doctrine is applicable to actions of this type and how it should

be applied. Courts finding that the doctrine is applicable because

the mere existence of a policy constitutes a continuing violation

include McKenzie v. Sawyer, 684 F.2d 62, 72 (D.C. Cir. 1982);

Perez v. Laredo Junior College, 706 F.2d 731 (Sth Cir. 1983)

and Williams v. Owens Illinois, Inc., 665 F.2d 918, 924 (9th Cir.

1982), cert. denied, 459 U.S. 971, 103 S. Ct. 302, 74 L. Ed. 2d

283 (1983). Circuits finding otherwise and basically concluding

that § 1983 actions accrue when a plaintiff should be aware of

the injury and its connection to the acts of the defendants include

Association Against Discrimination and Employment, Inc. v. City

of Bridgeport, 647 F.2d 256, 274 (2d Cir. 1981), cert. denied,

455 U.S. 988, 102 S. Ct. 1611, 71 L. Ed. 2d 847 (1982); Acha v.

Beam, 570 F.2d 57, 65 (2d Cir. 1978) and Lavelle v. Listi, 611

F.2d 1129, 1131 (Sth Cir. 1980).

In Lavelle v. Listi, supra, the Fifth Circuit held “a cause of

action under § 1983 accrues when ‘the plaintiff is, or should be,

aware of both the injury and the connection with the acts of the

defendant.’ ” Jd. at 1131. The Sixth Circuit is in accord and in

Dixon v. Anderson, 921 F.2d 212, 215 (6th Cir. 1991) stated “in

determining when the cause of action accrues in § 1983 actions,

8

we have looked tc what event should have alerted a typical lay _

person to protect his or her rights.” Jd. at 215.

The Tenth Circuit appears to have held both ways in the

same case. In Pike v. City of Mission, 731 F.2d 655 (10th Cir.

1984), the court said that challenging a systematic policy is not

barred since the policy continues to violate the employee’s rights,

“however, plaintiff may not use the continuing violation theory

to challenge discrete acts that occur outside the limitations period

even though the impact of the act is continued to be felt.” Pike

v. City of Mission, 731 F.2d at 660 (10th Cir. 1984). This

confusion has lead to inconsistent results, a problem, which

needs to be rectified by guidance from this Court.

It is the execution of the policy inflicting injury which

plaintiff must show in a § 1983 action rather than simply alleging

that a policy of discrimination exists. In analyzing respondent's

claim, the Ninth Circuit treated this § 1983 claim for employment

discrimination as if it were a Title VII claim. The court stated:

As in a Title VII claim, a policy or practice

of continuing discrimination is under attack

in a § 1983 claim for employment

discrimination.

Gutowsky v. County of Placer, 108 F.3d 256, 259 (9th Cir. 1997)

(App. C, 13a) (emphasis added). The court missed a significant

distinction in terms of the nature of a § 1983 Monell action.

Monell made clear that it is an “execution of a government’s

policy or custom .. . that inflicts the injury” which gives rise to

the liability not the mere existence of the policy. Without the

application of a policy to cause injury to a plaintiff, there is no

§ 1983 violation.

The mere existence of a policy without an application

ee ee ee Tere

9

(discrimination act) does not trigger any statute since the mere

existence of the policy is not a § 1983 violation. The Ninth

Circuit correctly pointed out that it is the execution of the policy

causing injury which is a critical part of a Monell claim. Despite

this, the court went on to state that without applying the

continuing violation doctrine, the accrual of the cause of action

would be uncertain. The court stated:

If the continuing violation doctrine were

inapplicable to Monell actions, it is difficult

to ascertain exactly when such claims would

accrue, especially if no_ specific

discriminatory acts evidenced the policy

during the year immediately prior to the filing

of the lawsuit. Jd.

This statement demonstrates the Ninth Circuit’s failure to

recognize the fundamental difference between a § 1983 Monell

action where the government policy or custom is executed to

inflict injury, and a Title VII claim where the mere existence of

a policy may be a basis for a claim.

It is not difficult at all to ascertain exactly when a claim

accrues under a § 1983 Monell action for it is simply the date

on which a discriminatory act took place. Gutowsky claimed

that the execution of the policy against her consisted of

Statements by supervisors which she felt were degrading to her

by reference to her job or gender. She also felt that the policy

was executed in terms of her being denied the right to use

County equipment to practice in preparation to take a State test

for a job which she did not currently hold and for which she

never applied. There were, in fact, discrete acts of discrimination

which would have advised a lay person of their cause of action

in this case. As the District Court found, none of these acts fell

within the limitations period. The court’s claim of uncertainty

10

as to the date of accrual does not lead to the Conclusion that the

continuing violation doctrine should be applied to § 1983

actions.

In its explanation of its ruling, the District Court found that

plaintiff had alleged specific discriminatory acts none of which

fell within the limitations period. The District Court found:

[P}laintiff’s complaint filed May 24, 1994 is

17 months late. Plaintiff attempts to revive

her claim relying upon testimony of one Peter

Caravella who replaced Compton as a

supervisor. Plaintiff testified that after he was

no longer plaintiff’s supervisor Compton

continued to make derogatory remarks about

women through at least May of 1993.

However, these remarks were made to

Caravella, and there is no evidence presented

to show that plaintiff was present or over

heard these remarks, or that they contributed

in any way to a hostile work environment so

pervasive that it altered the condition of

plaintiff’s own employment.

(App. D, 21a).

The District Court went on to point out:

[A]s the Supreme Court stated in Ricks and

the Ninth Circuit London cases cited by

defendant teach, her complaint which

purports to rely on a continuing civil rights

violation theory, as does plaintiff here, the

Statute of limitations begin to run on the last

discriminatory act and not on the date the

» BI

consequences of ffiat dct arefeit. Here, the

last date on which plaintiff worked with and

was subject to derogatory remarks from her

supervisor, Compton, was in December of

1991. Therefore, the last discriminatory act

of sexual harassment directed towards

plaintiff occurred on that date.

(App. D, 21a).

In contrast, the Ninth Circuit focused not on the discrete

acts of discrimination but on the alleged existence of some policy

or practice as supporting application of the “continuing

violation” doctrine to this § 1983 case. Contrary to the Ninth

Circuit’s conclusion, a § 1983 claim for employment

discrimination is not the same as a Title VII claim and the

continuing violations doctrine is not applicable to § 1983 Monell.

A specific execution of the policy causing injury must be the

basis of the Monell action rather than merely the existence of a

policy without its application to a particular individual to cause

injury.

Under this Court’s decisions, a cause of action accrues when

the discriminatory act occurs and when plaintiff knows or reason

to know of the injury which is the basis of the action. The

accrual of the cause of action is not extended or tolled to the

last date of employment when there is no actionable conduct at

that time such as a wrongful termination claim. The allegation

of the existence of a discriminatory policy in violation of the

Constitution does not impact the accrual date for discrete

discriminatory acts giving rise to a § 1983 employment

discrimination cause of action. To hold otherwise would

unreasonably extend the accrual of a Section 1983 employment

discrimination cause of action to the last day of employment

regardless of the number of years between the last discriminatory

act and the last date of employment.

12

CONCLUSION _____

For the fore, ving reasons the Petition for Certiorari should

be granted.

Respectfully submitted,

CRIS C. VAUGHAN

Counsel of Record

PLACER COUNTY

COUNSEL’S OFFICE

Attorney for Petitioner

County Administrative Center

175 Fulweiler Avenue

Auburn, California 95603

(916) 889-4044

la

APPENDIX A — ORDER OF-THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED APRIL 17, 1997

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 95-16850

D.C. No. CV-94-00818-EJG

YOVANA GUTOWSKY,

Plaintiff-Appellant,

v.

COUNTY OF PLACER,

Defendant-Appellee.

ORDER

Before: LAY,* GOODWIN and SCHROEDER, Circuit Judges.

The panel has voted unanimously to deny the petition for

rehearing. Judge Schroeder has voted to reject the suggestion

for rehearing en banc, and Judges Lay and Goodwin so

recommend.

The full court has been advised of the suggestion for

* Honorable Donald P. Lay, Senior United States Circuit Judge for

the Eighth Circuit, sitting by designation.

2a

ee Appendix A

rehearing en banc and no active judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing is DENIED and the suggestion

for rehearing en banc is REJECTED.

3a

~ APPENDIX B— JUDGMENT OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED MARCH 6, 1997

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 95-16850

CT/AG#: CV-94-00818-EJG

YOVANA GUTOWSKY

Plaintiff - Appellant

we

COUNTY OF PLACER

Defendant - Appellee

APPEAL FROM the United States District Court for the

Eastern District of California (Sacramento).

THIS CAUSE came on to be heard on the Transcript of the

Record from the United States District Court for the Eastern

District of California (Sacramento) and was duly submitted.

ON CONSIDERATION WHEREDOF It is now here ordered

and adjudged by this Court, that the judgment of the said District

Court in this cause be, and hereby is REVERSED and

REMANDED.

Filed and entered March 6, 1997

4a

APPENDIX C — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED MARCH 6, 1997

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

}

Yovana GUTOWSKY, 2

Plaintiff-Appellant, No. 95-16850

D.C. No.

>

™ CV-94-00818-EJG

County OF PLACER,

Defendant-Appellee. aes

Appeal from the United States District Court

for the Eastern District of California

Edward J. Garcia, District Judge, Presiding

Argued and Submitted

January 14, 1997—San Francisco, California

Filed March 6, 1997

Before: Donald P. Lay,* Alfred T. Goodwin and

Mary M. Schroeder, Circuit Judges.

Opinion by Judge Goodwin

SUMMARY

Labor and Employment/Employment Discrimination

The court of appeals reversed a judgment of the district

court. The court held that in an employment-discrimination

claim under 42 U.S.C. § 1983, the date of termination starts

the running of the statute of limitations on an employee's con-

*Honorable Donald P. Lay, Senior United States Circuit Judge for the

Eighth Circuit, siting by designation.

alia a eeeeeee iii

SSL

Sa

Appendix C

Stitutional claim based on a government entity's ongoing pol-

icy of gender discrimination in employment.

When she went to work as a clerk for appellee County of

Placer in 1982, appellant Yovana Gutowsky had a Bachelor

of Science degree. Gotowsky wanted to become an equipment

operator, but under California law, she needed a commercial

driver’s license. Despite her repeated requests for permission

to practice on County equipment for her commercial license

test over a period of over ten years, Gutowsky’s supervisors

either refused or failed to grant it. They cited County policy,

did nothing, noted that she was a “mere woman,” or laughed.

One supervisor said that it was “ridiculous” when Gutowsky

passed the written test for a commercial license.

During the same period, less-qualified male employees

were promoted over Gutowsky after securing commercial

drivers’ licenses on County time. Gutowsky never submitted

an application for a position as road-maintenance worker

because she believed that management's attitude made an

application by a woman futile. Gutowsky was never promoted

despite consistent and outstanding performance evaluations.

She resigned on May 26, 1993.

On May 24, 1994, Gutowsky filed an action against the

County under 42 U.S.C. § 1983, alleging gender discrimina-

tion in employment in violation of the equal protection and

due process clauses of the Fourteenth Amendment.

On the County’s motion for summary judgment,

Gutowsky’s evidence included 67 rejected applications by

women that included the road maintenance position. She also

submitted evidence that no woman had ever been hired for a

full-time position in that field. The district court ruled that

Gutowsky’s action was timed-barred because she did not

bring it within one year of the last alleged act of discrimina-

tion.

6a

Appendix C

On appeal, Gutowsky contended that the “continuing

violations” doctrine applied, and that the one-year period of

the governing statute of limitations did not commence until

the day she left her employment. She asserted that the Coun-

ty’s widespread policy and practices of discrimination contin-

ued every day of her employment, including days that fell

within the limitations period.

[1] The County suggested no cogent reasons why the

“continuing violations” doctrine used in Title VII claims

should not be applied in § 1983 cases. [2] A plaintiff in a Title

VII action who alleges a policy or practice of systematic dis-

crimination may in certain circumstances utilize the continu-

ing violations doctrine. This is because the employer’s

discriminatory policy continually deters the employee from

seeking full employment rights, or threatens to adversely

affect the employee in the future.

[3] As in a Title VII claim, a policy or practice of continu-

ing employment discrimination is under attack in a § 1983

claim for employment discrimination. In order to sue a munic-

ipality under § 1983, a plaintiff must show execution of a

government's policy or custom that inflicts the injury. If the

continuing violations doctrine were inapplicable, it would be

difficult to ascertain exactly when such claims would accrue,

especially if no specific discriminatory acts evidenced the pol-

icy during the year immediately prior to the filing of the law-

suit. The continuing violations doctrine therefore applied.

[4] Gutowsky had to show a series of related acts, one or

more of which fell within the limitations period, or the main-

tenance of a discriminatory system both before and during

that period. A .continuing violation may be established

through a series of related acts against one individual, or by

a systematic policy or practice of discrimination.

[S] Gutowsky’s motion papers were replete with evidence

of an ongoing practice and policy that denied opportunity to

ELT ELT A ner’ Pile ett et NA a A gee Jara

7a

Appendix C

women tO move into the equipment-operating positions. [6]

Gutowsky presented specific examples of discrimination that

were not the basis of her charge of discrimination, but evi-

dence that a policy of discrimination pervaded her employer's

personnel decisions. [7] The County ignored the portions of

Gutowsky’s claim of explicit experiences of discrimination

that were a continuing pattem of discriminatory action in its

promotion and placement procedures, and that these practices

and procedures were in place during the entire period of

Gutowsky’s employment.

[8] A material question of fact was presented by

Gutowsky’s pleadings and proffer. A trier of fact could have

found that the County’s discrimination against women as

equipment operators continued up to and including the last

day Gutowsky worked. Her claim was timely.

[9] A plaintiff need not apply for a job if the application

would have been futile. In such an instance, the plaintiff must

show that he or she was a potential victim of unlawful dis-

crimination, and establish that he or she would have applied

for the job had it not been for the discriminatory practices.

[10] A jury could have believed from Gutowsky’s evidence

that her application would have been futile. A triable issue of

fact was also supported by evidence demonstrating that she

was continually rebuffed in her attempts to practice on

County equipment in order to obtain her commercial driver’s

license.

COUNSEL

Cindy L. Robbins, Mackenroth, Ryan, Jacobson & Fong, Sac-

ramento, California, for the plaintiff-appellant.

Cris C. Vaughan, Deputy Placer County Counsel, Aubum,

Califomia, for the defendant-appellee.

8a

Appendix C

OPINION

GOODWIN, Circuit Judge:

Yovana Gutowsky appeals the summary judgment granted

in favor of defendant-appellee County of Placer. The district

court found that Gutowsky’s claims under 42 U.S.C. § 1983

were time-barred because they were not brought within the

one-year limitation period applicable to such claims.

Gutowsky challenges this ruling, asserting that because the

discriminatory policies and practices were continuous viola-

tions throughout her County employment, the limitation

period did not begin to run until the day she quit her job. We

reverse and remand.

Factual and Procedural Background

Gutowsky was hired in March of 1982 by the County of

Placer Department of Public Works, Road Division, as a com-

munications clerk. Her duties in that position included

answering phones, dispatching road crews, collecting fees,

doing radio work and handling payroll. Gutowsky was so

employed for ten years; and although her duties increased, she

was never promoted. Gutowsky claims that discriminatory

policies and practices in the County’s hiring and promotional

procedures denied her an equal opportunity to advance in her

employment'

‘Gutowsky's First Amended Complaint for Damages alleges:

8. At all times mentioned herein, the COUNTY OF PLACER,

DEPARTMENT OF PUBLIC WORKS, had a policy, practice, and/or cus-

tom to employ gender-based criteria in hiring, assigning, promoting, and

disciplining staff in the ROADS [sic] DIVISION, specifically at the Tahoe

locauion in Placer County, and to deny employment and advancement to

women. Pursuant to this policy, practice or custom, among other actions,

the COUNTY precluded females from obtaining permits to operate

ROADS DIVISION equipment, thereby limiting the tasks performed by

female employees, including plaintiff, within a male-dominated depart-

ment.

7m

Appendix C

Gutowsky wanted to become an equipment operator, but

under Califomia law, she needed a commercial driver’s

license. Gutowsky asserts that male road crew workers were

allowed to use county equipment to practice for their com-

10. Plaintiff alleges that it was the policy, practice and/or custom of

the COUNTY to promote and otherwise ensure the Career advancement of

less qualified male employees by assisting them in obtaining their Class

I licenses for operating ROADS DIVISION equipment, where these same

Opportunities were not provided to better qualified female employees,

including plaintiff.

A. Discriminatory hiring and promouon practices

Plainuff YOVANA GUTOWSKY holds a Bachelor of Science degree

in National Resources and Business Administration. She began working

for the COUNTY in PUBLIC WORKS, ROADS DIVISION. at the Tahoe

Administration Building in 1982. From that time unul the time she was

forced to resign in May 1993, she was not given a single promotion

despite consistent and Outstanding performance evaluations. During this

same time period, defendant COUNTY repeatedly hired numerous entry-

level male employees as “Equipment Operators.” The COUNTY allowed

these male employees, who were not college educated, to obtain Class |

licenses to operate equipment during their regular working hours.

13. Despite plaintiff's repeated requests to obtain her Class I license,

defendants, and each of them, declined to allow her to apply for a Class

I license on COUNTY time, and repeatedly told plaintiff uhat she could

NOt Operate equipment because she was female.

14. Throughout the 11 1/2 years plainuff was employed with the

PUBLIC WORKS ROADS DIVISION, not a single female employee was

accepted as an equipment operator, full time, on a promotion track. During

the entire 11 1/2 years plaintiff was employed at the ROADS DIVISION

in Tahoe, not a single female employee of the ROADS DIVISION was

promoted. During this same period of time, numerous-male employees

with lesser qualifications were promoted, advanced in their Careers and

Offered higher paying jobs at the Aubum facility.

10a

Appendix C

mercial license tests. She “frequently” asked her supervisor

Leonard Zick if she could use the County’s equipment to

practice. In response to her request in 1983, Zick told her that

“she could not do it because it was not County policy.” That

same year, Gutowsky asked the Director of Public Works,

John McGowan, for use of the County’s equipment. McGo-

wan retired shortly thereafter, and the request “didn’t go

anywhere.” In 1988, Zick transferred out of the Tahoe office

and Kenneth Compton became Gutowsky’s supervisor.

Gutowsky asked Compton if she could use the County’s

equipment, and he responded that she was “a mere woman

and a secretary and a clerk.”

In 1991, Gutowsky talked to Assistant Director Jan Witter

about using the.County’s equipment to practice for her com-

mercial driver's license, and in response, he “laughed.”

Gutowsky continued to ask Compton, at least once a year

during her review time, to use the County’s equipment to

practice. Meanwhile, Gutowsky actually took and passed the

written test for a Class I commercial driver's license. Comp-

ton said the fact that Gutowsky had taken the written test was

“ridiculous.”

Compton was replaced as Gutowsky’s supervisor by Pete

Caravella in 1992. Gutowsky continued her efforts to obtain

permission to use the County's equipment while Caravella

was her supervisor. Attempts by Caravella to accommodate

Gutowsky’s requests to utilize the equipment were rebuffed

by Witter. She alleges that Caravella and Compton discussed

her request as late as May, 1993, to no avail.

Jim Gray, personnel director for the County, said he was

not aware of any women having been hired as full-time road

maintenance workers. The reason for this, he states, is that

“women have not applied for these jobs.” Gutowsky submit-

ted as evidence sixty-seven job applications from women -hat

list “Road Maintenance Worker” as one of the positions for

lla

Appendix C

which they would like to apply. It is apparently undisputed

that no woman had ever been hired as a full-time equipment

operator or road maintenance worker at the time Gutowsky

brought this action.

In order to obtain a position with or to be promoted by

Placer County, a person is required to submit an application,

undergo an examination process, and be placed on an eligibil-

ity list, pursuant to the Civil Service Commission mules of the

County. Gutowsky never submitted an application for a posi-

tion as a road maintenance worker or as an equipment opera-

tor with the County. She asserted that she did not submit a

formal application because she believed that management’s

attitude made an application by a woman futile.

Gutowsky’s employment with the County of Placer ended

on May 26, 1993. This action was filed on May 24, 1994. The

district court found that Gutowsky’s claim was time-barred

because it was not brought within one year from the date of

the last discriminatory comments made by Gutowsky’s super-

visors. The district court granted the County’s motion for

summary judgment on that basis on August 18, 1995.?

*The coun stated:

Again, assuming but not deciding that plaintiff states a claim

for intentional discrimination in violation of the 14th Amendment

equal protection and due process clauses, her claim is time-

barred. Specifically plaintiff maintains that she was discouraged

from applying for non-clerical positions as early as 1983, which

discouragement continued through 1993, and that she persisted in

her attempt to promote to an equipment operator during the time

that Caravella was her supervisor in 1992 and 1993, and that her

Supervisors discussed this matter among themselves as late as,

“May, 1993.”

However, to the extent that plaintiff relies on statements made

by Compton, supervisor to Caravella, that it was plaintiff's job to

answer the phones, even assuming that this statement can be con-

sidered to be an act of discrimination, plaintiff has failed to dem-

onstrate that such statements were made within the one-year

period prior to the filing of the complaint.

12a

Appendix C

Standard of Review

/

We must determine, viewing the evidence in the light most

favorable to the nonmoving party, whether there are any gen-

uine issues of material fact, and whether the district court cor-

rectly applied the relevant substantive law. This court does

not weigh the evidence or determine the truth of the matters

asserted. We decide only whether there is a genuine issue for

trial. Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1130-

31 (9th Cir. 1994).

Analysis

Gutowsky and the County agree, as do we, that the appro-

priate limitation period under California law for a Section

1983 claim is one year. McDougal v. County of Imperial, 942

F.2d 668, 672 (9th Cir. 1991); Cal. Civ. Proc. Code § 340(3).

The parties disagree, however, when the one-year limitation

period should commence. Gutowsky argues that the

“continuing violations” doctrine applies and that the year

began on the date she left her employment. We agree with

Gutowsky.

1. The Continuing Violations Doctrine in Section 1983

Claims

{1} Noting the “dearth of authority” regarding the timeli-

ness of a Monel employment discrimination suit under Sec-

tion 1983, Gutowsky argues that the “continuing violations”

doctrine used in Title VII claims should be applied in Section

1983 cases. The County suggests no cogent reasons why this

should not be the case.

(2) A plaintiff in a Title VII action who alleges a policy or

practice of systematic discrimination, as opposed to alleging

*Referencing Monell v. Department of Social Servs., 436 U.S. 658

(1978).

13a

Appendix C

only individual discriminatory acts, may in certain circum-

Stances utilize the continuing violations doctrine. Under this

approach, an action is always timely if brought by a present

employee. Reed v. Lockheed Aircraft Corp., 613 F.2d 757,

761 (9th Cir. 1980) (citation omitted). This is because the

employer’s discriminatory policy “continually deters the

employee from seeking . . . full employment rights or threat-

ens to adversely affect [the employee] in the future.” Jd.

[3] As in a Title VII claim, a policy or practice of continu-

ing discrimination is under attack in a Section 1983 claim for

employment discrimination. Indeed, in order to sue a munici-

pality under Section 1983, a plaintiff must show “execution

of a government's policy or custom. . . (that) inflicts the

injury.” Monell v. Dep't of Social Servs., 436 U.S. 658, 694

(1978). If the continuing violations doctrine were inapplicable

to Monell actions, it is difficult to ascertain exactly when such

claims would accrue, especially if no specific discriminatory

acts evidenced the policy during the year immediately prior to

the filing of the lawsuit. Therefore, the continuing violations

doctrine is applicable to Monell actions.

II. Continuing Violations Doctrine Applied in this Case

[4] To invoke the continuing violations doctrine in her case.

Gutowsky must show “a series of related acts, one or more of

which falls within the limitations period, or the maintenance

of a discriminatory system both before and during [that]

period. Green v. Los Angeles County Superintendent of Schs.,

883 F.2d 1472, 1480 (9th Cir. 1989) (citations omitted). Thus,

a continuing violation may be established through a series of

related acts against one individual, or by a systematic policy

Or practice of discrimination. Jd.

[5] The County asserts that the doctrine of continuing vio-

lations does not apply because Gutowsky offered insufficient

evidence of such violations. The County is mistaken.

Gutowsky’s motion papers were replete with evidence of an

14a

Appendix C

ongoing practice and policy that denied opportunity to women

to move into the equipment operating positions.

In Reed v. Lockheed Aircraft Corp., 613 F.2d 757 (9th Cir.

1980), we reversed a district court decision in a case in which

plaintiff alleged a policy of continuing discriminatory prac-

tices. In Reed, the district court found that plaintiff had

alleged only three instances of discrimination, and held that

her claim was time-barred because it had not been filed within

the appropriate time period from the date of the last discrimi-

natory instance. Jd. On appeal, we held that:

The complaint should not be read so narrowly. Her

allegations included a sweeping attack on Lock-

heed’s systems of promotion, compensation and

training. She alleged that the violations took place

throughout her service at Lockheed and until the day

she filed her complaint. . . . [EJach day without pro-

motion constituted a new violation of Title VII,

assuming that similarly situated males were pro-

moted with more regularity.

Id. at 759-60,

[6] Like the Reed plaintiff, Gutowsky presents specific

examples of discrimination which “are not the basis of her

charge of discrimination” but rather “are but evidence that a

policy of discrimination pervaded [her employer's] personnel

decisions.” Jd. at 760. Indeed, Gutowsky contends that the

widespread policy and practices of discrimination of which

she complains continued every day of her employment,

including days that fall within the limitation period.

[7] The County’s theory ignores the portions of Gutow-

sky’s claim of explicit experiences of discrimination that

show these to be a continuing pattern of discriminatory action

in its promotion and placement procedures; and that these

practices and procedures were in place during the entire

2B een nk ams el neem dee #

lita BB fh nN ae pn ine

15a

Appendix C

period of Gutowsky’s employment. The Significance of the

fact that Gutowsky’s name did not appear on an eligibility list

in December 1992 is for the trier of fact to consider. The pub-

lication of the list did not necessarily signal the end of those

practices. Publication of such a list was completely consistent

with a policy against putting women in the cabs of snowplows

and other heavy equipment.

III. Date of Accrual of the Action

[8] We hold that the doctrine of “continuing violations”

applies in this case. A material question of fact is presented

by Gutowsky’s pleadings and proffer. A trier of fact could

find that the County’s discrimination against women as equip-

ment operators continued, at least in Gutowsky’s area of

employment up to and including the last day she worked.

Accordingly, her claim, filed within one year of her last day

of work was timely.

IV. Effect of Gutowsky’s Failure to Apply for the

Position

The County claims that Gutowsky’s failure to submit an

application for the position of road maintenance worker or

equipment operator precludes her from maintaining a Section

1983 lawsuit for employment discrimination. The County

cites Tagupa v. Board of Directors, 633 F.2d 1309 (9th Cir.

1980), for the premise that submission of an application is a

necessary element of a Section 1983 claim for wrongful

denial of a certain job.

[9] The Supreme Court has held, however, that a plaintiff

need not apply for a job if the application would have been

futile. Int'l Bhd of Teamsters v. United States, 431 U.S. 324,

365-68 (1977). In such an instance, the plaintiff must show

that he or she “was a potential victim of unlawful

discrimination” and, to that end, the plaintiff must establish

that he or she “would have applied for the job had it not been

16a

Appendix C

for those [discriminatory] practices.” Jd. at 367-68. While

Teamsters is a Title VI case, we have recognized the poten-

tial for its application in Section 1983 actions. Tagupa, 633

F.2d at 1312 n.2 (stating that, because Tagupa brought forth

no evidence to indicate that he was discouraged from apply-

ing for the job, “he can draw no comfort from the analysis in

... Teamsters . . ., wherein the Supreme Court recognized

that circumstances may excuse the requirement that a plaintiff

apply for the position”).

[10] The County argues that Gutowsky has not submitted

any evidence to show that she reasonably believed that sub-

mission of an application for the position would be futile. The

jury could very well believe from Gutowsky’s evidence of

sixty-seven applications by women that included the road

maintenance position, that her sixty eighth application would

have been futile. She also submitted evidence that no woman

has ever been hired for a full-time position in that field. A tri-

able issue of fact is also supported by evidence demonstrating

that she was continually rebuffed in her attempts to practice

on County equipment in order to enable her to obtain her

commercial driver's license.

Conclusion

In this case the limitation period began to mun on

Gutowsky’s last day of work for the County. Her claim was

not ume barred. Triable issues of fact are: (1) Whether the

County’s management personnel had a policy or custom bar-

ring the employment of women as road maintenance workers

Or equipment operators. (2) Whether an application for a posi-

tion as an equipment operator would have been futile. On this

record, summary judgment was not appropriate.

REVERSED and REMANDED.

17a

APPENDIX D — REPORTER’S TRANSCRIPT, UNITED

STATES COURT OF APPEALS, COURT’S RULING ON

MOTION FOR SUMMARY JUDGMENT

DATED AUGUST 18, 1995

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

No. CV S 94-0818

BEFORE THE HONORABLE EDWARD J. GARCIA,

JUDGE

Yovana Gutowsky,

Plaintiff,

VS.

County of Placer,

Defendant.

REPORTER’S TRANSCRIPT

COURT’S RULING ON MOTION FOR SUMMARY

JUDGMENT

FRIDAY, AUGUST 18, 1995

Reported by: MARGARET A. McNAMARA, CSR #6729

APPEARANCES

| For the Plaintiff:

18a

Appendix D

MACKENROTH RYAN JACOBSON FONG

1610 Arden Way, Suite 250

Sacramento, California 94815-4032

By: Cindy Robbins, Atty at Law

and

Timothy Ryan, Atty at Law

For the Defendant:

PLACER COUNTY COUNSEL

Placer County Administrative Center

175 Fulweiler Avenue, Room 301

Auburn, California 95603-4581

By: Cris C. Vaughan, Deputy County Counsel

19a

Appendix D

[1] SACRAMENTO, CALIFORNIA

Friday, August 18, 1995, 9:00 A.M.

THE COURT: Civil case number 94-0818, Yovana

Gutowsky versus County of Placer, defendant.

MS. ROBBINS: Good morning, your Honor, Cindy

Robbins for the plaintiff.

MR. VAUGHAN: Good morning, your Honor, Cris

Vaughan on behalf of the defendant, County of Placer.

THE COURT: Mr. Vaughan.

MR. RYAN: Good morning, your Honor, Timothy Ryan

on behalf of the plaintiff.

THE COURT: Mr. Ryan.

Give me a minute to review my notes. This matter is on

calendar on defendant’s motion for summary judgment.

Defendant moves for summary judgment on the two causes of

action pled which are brought pursuant to Section 1988 of the

Civil Rights Act contending that they are one, time-barred,

and alternatively that plaintiff has failed to submit evidence of

intentional discrimination. I’ve reviewed the briefs on the matter.

Is there anything you want to add on the motion, Mr.

Vaughan, not covered in your briefs?

[2] MR. VAUGHAN: We would submit it, your Honor.

THE COURT: Mr. Ryan or Ms. Robbins, anything to add?

20a

Appendix D

MS. ROBBINS: Just briefly, your Honor. With respect to

the statute of limitations, specifically on the plaintiff's claims

of hiring and promotion, in a case cited in the defendant's reply

brief, Ninth Circuit Reese vs. Lockheed Aircraft, a challenge to

systematic discrimination is always timely if it’s brought by a

present employee. Here the plaintiff brought suit within a year

of leaving employment at 762 — page 762 of that case, which

is 613 F 2d.

The Ninth Circuit held that when a person’s desire for a

job is not translated into a formal application solely because of

his unwillingness to engage in a futile gesture, he is as much a

victim of discrimination as he who goes through the motions

of submitting an application. The plaintiff's claims are for denial

of equal protection and due process. She offers substantial

evidence of these claims within the limitations period.

THE COURT: Mr. Vaughan, if you submit the matter I’m

going to grant your motion on statute of limitations grounds.

[3] MR. VAUGHAN: Submitted, your Honor.

THE COURT: Section 1983 actions are governed by a one-

year statute of limitations. Plaintiff, a Department of Public

Works employee of the defendant county, contends that she

was subjected to sexual harassment in the form of a hostile

work environment and was denied promotional opportunities

based on her sex in violation of state and federal constitutional

equal protection and procedural due process rights. On the

motion plaintiff submits evidence that she was subjected to a

hostile working environment during two specific periods of

her eleven-year employment with the county.

_> > — — ~ —_—™ — —

2la

Appendix D

First, from 1982 through 1988 she was verbally and

physically harassed by her supervisor Leonard Zick, and from

1988 through December of 1991 she was verbally harassed

by her supervisor Kenneth Compton. Assuming, without

deciding that the conduct complained of constituted actionable

sexual harassment and that it was continuous from 1982 through

1991, any Section 1983 action based on this conduct would

have had to have been filed no later than December of 1992.

Plaintiff's complaint filed May 24, 1994 is 17 months late.

Plaintiff attempts to revive her claim[4]} through the testimony

of one Peter Caravella, who replaced Kenneth Compton as her

Supervisor. She testifies that Compton, after he was no longer

plaintiff’s supervisor, continued to make derogatory remarks

about women through at least May of 1993. However, these

remarks were made to Caravella, and there is no evidence

presented to show that plaintiff was present or overheard these

remarks, or that they contributed in any way to a hostile

working environment so pervasive that it altered the conditions

of plaintiff's employment.

As the Supreme Court Ricks and the Ninth Circuit London

cases cited by defendant teach, for complaints which purport to

rely on a continuing civil rights violation theory, as does plaintiff

here, the statute of limitations begins to run on the date of the

last discriminatory act, and not on the date the consequences of

that act are felt. Here the last date on which plaintiff worked

with and was subject to derogatory remarks from her supervisor,

Compton, was in December of 199]. Therefore the last

discriminatory act of sexual harassment directed towards plaintiff

occurred on that date.

Defendant's motion for Summary judgment on the [5] two

— ——————_- _—-—_———_—_ —

——

——- —--

— — eee ee ae

22a

Appendix D

causes of action pled, to the extent they allege section 1983

violations based on sexual harassment, is granted as time-barred.

Plaintiff also contends that her 14th Amendment equal

protection and due process rights were violated when she was

denied, on the basis of her gender, the opportunity to promote

to a non-clerical position. The evidence shows that during her

employment with the county, plaintiff never completed an

application for such a position. Plaintiff contends, however,

that that was because she was discouraged from doing so.

Again, assuming but not deciding that plaintiff states a claim

for intentional discrimination in violation of the 14th

Amendment equal protection and due process clauses, her claim

is time-barred. Specifically plaintiff maintains that she was

discouraged from applying for non-clerical positions as early

as 1983, which discouragement continued through 1993, and

that she persisted in her attempt to promote to an equipment

operator during the time that Caravella was her supervisor in

1992 and 1993, and that her supervisors discussed this matter

among themselves as late as, “May, 1993.”

However, to the extent that plaintiff relies [6] on statements

made by Compton, supervisor to Caravella, that it was plaintiff's

job to answer the phones, even assuming that this statement

can be considered to be an act of discrimination, plaintiff has

failed to demonstrate that such statements were made within

the one-year period prior to the filing of the complaint.

Defendant’s motion for summary judgment on plaintiff’s 14th

Amendment claims of equal protection and due process

violations based on intentional sexual discrimination in the form

of failure to promote is also granted. These claims are also time-

barred by Section 1983 one-year statute of limitations. Having

granted summary judgment in defendant’s favor on the Section

eT

23a

Appendix D

1983 federal claims which gave this Court its original

jurisdiction, I now decline jurisdiction over the purely state

constitutional claims pursuant to section 1367(c)(3) of Title 28.

With this disposition I do not reach defendant’s other bases for

the motion. We’ll prepare a summary order and direct the clerk

to enter final judgment in favor of defendant.

Anything further Mr. Ryan?

MR. RYAN: No, your Honor.

THE COURT: Ms. Robbins?

[7] MS. ROBBINS: No, your Honor.

THE COURT: Mr. Vaughan?

MR. VAUGHAN: No, sir.

THE COURT: All right. Thank you, counsel.

(Whereupon the proceedings were adjourned.)

OL itt a cS A sa I RN Re

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24a

Appendix D

[8] REPORTER’S CERTIFICATE

STATEOFCALIFORNIA __)

) Ss.

COUNTY OF SACRAMENTO )

I, MARGARET A. McNAMARA, certify that I was the

official Court Reporter, and that I reported verbatim in shorthand

writing the foregoing proceedings; that I thereafter caused my

shorthand writing to be reduced to typewriting, and the pages

numbered | through 7, inclusive, constitute a complete, true,

and correct record of said proceedings:

COURT: U.S. District Court

Eastern District of California

JUDGE: Honorable EDWARD J. GARCIA, Judge

CAUSE: Yovana Gutowsky vs. County of Placer

Case No. CV S 94-0818

DATE: Friday, August 18, 1995

IN WITNESS WHEREOF, I have subscribed this certificate

at Sacramento, California, on the 8th day of September, 1995.

MARGARET A. McNAMARA

CSR No. 6729

25a

APPENDIX E — ORDER AFTER HEARING OF THE

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF CALIFORNIA

FILED AUGUST 22, 1995

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

CIV NO. S-94-0818 EJG/JFM

YOVANA GUTOWSKY,

Plaintiff,

V.

COUNTY OF PLACER.

Defendant.

ORDER AFTER HEARING

This matter was before the court on August 18, 1995, for

hearing on defendant’s motion for summary judgment. Cindy

Robbins and Timothy Ryan appeared on behalf of plaintiff.

Chris Vaughan appeared on behalf of defendant. After

considering the parties’ written and oral arguments and the

record in this matter, and for the reasons stated in the court’s

oral analysis in open court on the record, the court entered the

following order.

1. Defendant’s motion for summary judgment is granted

on the grounds that plaintiff’s section 1983 Claims are time-

barred. The court does not reach defendant's alternative

arguments.

26a

Appendix E

2. Having dismissed all claims over which the court has

original jurisdiction, the court declines suppiemental jurisdiction

over the state constitutional claims contained in the complaint

and those claims are now dismissed. See 28 U.S.C. § 1967(c)(3).

3. The Clerk of Court is directed to enter judgment in favor

of defendant.

IT IS SO ORDERED.

Dated: August 18, 1995

s/ Edward J. Garcia

EDWARD J. GARCIA, JUDGE

UNITED STATES DISTRICT COURT

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