Donoghue v. Orange County

Decision Date26 May 1988
Docket NumberNo. 86-5927,86-5927
Citation848 F.2d 926
Parties46 Fair Empl.Prac.Cas. 1844, 46 Empl. Prac. Dec. P 38,013 Joan Marie DONOGHUE, Plaintiff-Appellant, v. The COUNTY OF ORANGE; Dennis W. La-Ducer, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

David Leung, Santa Ana, Cal., for plaintiff-appellant.

James P. Slack, Santa Ana, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before TANG, ALARCON and KOZINSKI, Circuit Judges.

TANG, Circuit Judge:

Donoghue appeals the dismissal of her federal claims under the Civil Rights Act, sections 1983, 1985 and 1986, and of pendent state claims for relief, and the entry of a directed verdict in favor of Orange County and a county official in her Title VII sex discrimination claims. The district court dismissed the federal claims and the pendent state claims as barred by applicable statutes of limitation. Donoghue also appeals the court's order quashing two subpoenas on the ground that compliance with one would be oppressive and that the other failed to specify who was requested to testify on behalf of the county. We reverse in part and affirm in part.

BACKGROUND

Donoghue was promoted from a clerk-typist position to Deputy Sheriff I for Orange County in November 1977. She was assigned to work in the Orange County Women's Jail until she entered the Training Academy of the Orange County Sheriff's Department in January 1978. Before she entered the Academy Donoghue was told by Sheriff Gates that no female deputy sheriff would perform patrol duties as long as he was sheriff, but would only work in the Orange County jail. There were 28 men and 4 women in Donoghue's class at the Academy. The training sessions lasted from 6:30 a.m. until 6:00 p.m., five days a week, and were based on a stress training model intended to prepare recruits to be aggressive and combative. Donoghue complains that several aspects of her treatment while at the Academy constitute impermissible discrimination on the basis of sex.

1. Gig and research memoranda. The punishment for various rule infractions was the imposition of writing assignments which took 45 minutes to complete. Donoghue was required to write an average of five such memoranda each night. Men who received gig assignments typically only had to prepare one or two a day. The time Donoghue spent preparing memoranda detracted from the time she needed for studying and preparation for the next day's training.

2. Verbal harassment. The Academy's stress training method included a certain amount of verbal harassment. Donoghue was subjected to disparaging statements because of her gender.

3. Physical harassment. Stress training also included the imposition of physical punishments, in the form of running laps and doing sets of 20-50 push-ups, for various infractions. Donoghue was required to do push-ups three or four times a day and to run laps from 10 to 20 times a week. Men who received these punishments had to do an average of one or two sets of push-ups a day, and run laps only twice a week. Donoghue's performance on physical training tests was impaired because the tests often occurred immediately after she had been required to do extra laps or push-ups.

4. Physical training and weight. Two male deputies were exempted from the required physical training. Among several deputies who were overweight, only Donoghue 5. Firearms training. While many of the males and one of the other females had previous firearms experience, Donoghue had none. She was failing in that aspect of her training but was unable to arrange any extra practice because the firing range was unavailable. When she commented that the shotgun would be easier to handle if it had a shorter butt, her instructor replied that women do not belong in police work.

and one other female were required to "weigh-in" every day and only Donoghue received poor evaluations because of her weight (10-12 pounds overweight).

6. Failing grades and termination. Donoghue was aware that her weekly test scores were not at a passing level, but she was not warned that a failure to improve would lead to her termination. Male deputies were given such warnings. Males who failed the training were permitted to repeat the program, but Donoghue was not offered that opportunity.

Donoghue was terminated on March 30, 1978. (She subsequently obtained a position as a police officer with the City of Anaheim, for which she attended and graduated from Rio Hondo Police Academy, a program which did not employ stress training.) Donoghue filed a charge of employment discrimination with the Division of Fair Employment Practices of the California Department of Industrial Relations on April 19, 1978; the Division issued a right to sue letter on November 5, 1978. Donoghue filed a charge with the EEOC on June 6, 1978; EEOC issued a right to sue letter on March 4, 1983.

The EEOC letter indicated Donoghue was treated discriminatorily in that (1) she did not receive a warning to improve, while male recruits did; (2) she failed because of her physical training scores, while a male recruit was excused from physical training; (3) she received poor evaluations because of her weight, while males more overweight than she did not receive poor evaluations; (4) she was terminated without the opportunity to repeat the training, while a male who failed was permitted to repeat training; and (5) of four women admitted to the academy, two failed.

Donoghue filed suit in federal court on July 14, 1983, and filed her first amended complaint on July 27, 1984. On November 13, 1984 the district court dismissed Claims 3-12 of her complaint, without explanation. The two remaining Title VII claims were tried to a jury on April 1, 1986. 1 On April 2, 1986 the district court granted an oral motion to quash Donoghue's two subpoenas, and then directed a verdict for the defendants. The judgment was entered May 6, 1986, and Donoghue timely appealed on May 7, 1986.

ANALYSIS
I. Statutes of Limitation and Equitable Tolling

A dismissal on statute of limitations grounds presents a question of law reviewed de novo. In re Swine Flu Products Liability Litigation, 764 F.2d 637, 638 (9th Cir.1985).

The district court did not explain its reason for dismissing Claims 3-12, but the motion to dismiss argued that Claims 1-6 were barred by the statute of limitations, and that if the court dismissed those 6 federal claims, it would be appropriate to dismiss the state claims enumerated in Claims 7-12 for lack of jurisdiction. On appeal, both parties appear to believe that all of the claims were dismissed as barred by the statutes of limitation.

Claims 3-6 are based on the Civil Rights Acts, 42 U.S.C. Secs. 1983, 1985 and 1986. The appropriate statutes of limitations for these claims are as follows: three years for the section 1983 and 1985 claims, Cal.Civ.Proc.Code Sec. 338(1) ("action upon a liability created by statute"); Venegas v. Wagner, 704 F.2d 1144, 1145 (9th Cir.1983); 2 and one year for the section 1986 claim, 42 U.S.C. Sec. 1986; Burnett v. Grattan, 468 U.S. 42, 48, 104 S.Ct. 2924, 2928, 82 L.Ed.2d 36 (1984).

Unless saved by a tolling doctrine, all of Donoghue's federal claims are barred because she did not file them until July 14, 1983, more than five years after accrual of her claims on March 30, 1978, when she was terminated.

The state claims Donoghue alleges have different statutes of limitations, but the longest is the four year limit for suits on a written contract, Cal.Civ.Proc.Code Sec. 337 which would apply to Claims 9 and 12, which involve breach of an employment contract and tortious interference with a contract. Claims 7 and 8 involve breaches of statutory rights, and are governed by the three year limit of Cal.Civ.Proc.Code Sec. 338(1). Claims 10 and 11 allege intentional and negligent misrepresentation, and would be governed by the one year limit for tort actions. Cal.Civ.Proc.Code Sec. 340. Thus, all of Donoghue's state claims are barred unless the tolling doctrine operates to save them.

The Supreme Court has clearly held that in the absence of a federal statute of limitations for claims arising under the Civil Rights Acts of 1866 and 1871, the controlling statute of limitations is the most appropriate one provided by state law. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975) (section 1981 claim). The Court has also indicated that state law doctrines allowing for tolling may be applicable to section 1983 actions. Board of Regents v. Tomanio, 446 U.S. 478, 486-87, 100 S.Ct. 1790, 1796-97, 64 L.Ed.2d 440 (1980). See also Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir.1980) (state tolling doctrines apply to a section 1981 action). The Supreme Court's reasoning is that state tolling doctrines should apply unless they are inconsistent with federal policy underlying the cause of action under consideration. Chardon v. Fumero Soto, 462 U.S. 650, 657, 103 S.Ct. 2611, 2616, 77 L.Ed.2d 74 (1983) ("[N]o federal policy--deterrence, compensation, uniformity, or federalism--[is] offended by the application of state tolling rules."); Tomanio, 446 U.S. at 487-92, 100 S.Ct. at 1796-99; Johnson, 421 U.S. at 465, 95 S.Ct. at 1722.

We think it is clear that we must apply the tolling principles of California law to both the federal and state claims in this case. 3 The teaching of Johnson, Tomanio and Chardon is that there is no federal policy underlying the federal claims which is inconsistent with the application of the state tolling doctrine.

Under California's equitable tolling doctrine, the prior pursuit of a federal remedy may toll the state statute of limitations when a person has "several formal legal remedies and reasonably and in good faith pursues one." Jones v. Tracy School Dist., 27...

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