# Petition for Writ of Certiorari — Placer County v. Gutowsky

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 914

## Text

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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:

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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

l

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 #

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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

i
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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1207%3A1. Public record. Not legal advice.