860 F.2d 928 (9th Cir. 1988), 87-3825, Learned v. City of Bellevue

Docket Nº:87-3825.
Citation:860 F.2d 928
Party Name:4 Indiv.Empl.Rts.Cas. 262 Stephen D. LEARNED, Plaintiff-Appellant, v. CITY OF BELLEVUE, Defendant-Appellee.
Case Date:November 03, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 928

860 F.2d 928 (9th Cir. 1988)

4 Indiv.Empl.Rts.Cas. 262

Stephen D. LEARNED, Plaintiff-Appellant,

v.

CITY OF BELLEVUE, Defendant-Appellee.

No. 87-3825.

United States Court of Appeals, Ninth Circuit

November 3, 1988

        Argued and Submitted Feb. 2, 1988.

Page 929

        Robert Schmitt, Seattle, Wash., for plaintiff-appellant.

        Richard L. Kirkby, Janet E. Garrow, City of Bellevue, Bellevue, Wash., for defendant-appellee.

        Appeal from the United States District Court for the Western District of Washington.

        Before FLETCHER and PREGERSON, [*] Circuit Judges, and GEORGE, [**] District Judge.

Page 930

        GEORGE, District Judge:

        Learned appeals the grant of summary judgment in favor of his employer, the City of Bellevue (Bellevue), on Learned's claims under the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, Title VII of the Civil Rights Act of 1964, section 704(a), 42 U.S.C. 2000e-3(a), and the fourteenth amendment to the United States Constitution. We conclude that summary judgment was proper and affirm the judgment.

        FACTS AND PROCEEDINGS BELOW

        Learned has been employed by the City of Bellevue in the Parks and Recreation Department since 1975. In 1977, Learned was promoted to "crew leader" where he supervised three to ten persons responsible for the maintenance of street trees. Learned enjoyed favorable employment evaluations and a positive working relationship with his superiors.

        In May 1978, Learned was stabbed by a co-worker while in the course of his employment. Learned suffered serious injuries requiring hospitalization and plastic surgery, for which he received industrial insurance medical benefits from the State of Washington. Learned returned to work in June 1978, and in October 1980, his industrial insurance claim was closed. In September 1982, however, Learned sought to re-open his claim. Learned sued his employer for "excess damages" under an industrial insurance statute. The action would have required proof of intentional injury on behalf of Learned's employer, but the suit was ultimately dismissed as untimely.

        Soon after filing suit, Learned experienced "problems" at work. Learned was assigned a new supervisor who was dissatisfied with Learned's work. Learned was allegedly harassed with charges of negligence and misconduct and given special rules regarding breaks. His responsibilities as crew leader were dramatically decreased. Learned developed an ulcer and began to see a psychiatrist. His employer thereafter allegedly harassed him about his medical appointments and made a special rule for Learned regarding notice and documentation of all medical appointments. In addition, Learned alleged that his supervisors referred to him as "crazy" or "sick" when conversing with co-workers.

        In October 1982, Learned filed a complaint with the Washington Human Rights Commission (HRC) alleging discrimination on the basis of physical and mental limitations in violation of state law. He also charged retaliatory conduct, but later withdrew that charge. At the bottom of the complaint, Learned checked a box that said:

"I also allege a violation of Title VII of the Civil Rights Act of 1964 and request that this Complaint be filed with the U.S. Employment Opportunity Commission."

        When Learned's supervisors continued to "harass" him and treat him differently than they did other employees, Learned filed a second complaint with the state HRC alleging retaliatory conduct for Learned's having filed the first HRC complaint and his suit for excess damages. Again, Learned checked the box with the provision quoted above. In November 1983, Learned filed a third complaint with the HRC alleging retaliatory conduct and checking the box quoted above. Three months later, Learned "voluntarily" transferred to the ballfield maintenance division where his title and salary have remained the same, but his responsibilities have diminished.

        In April 1984, following an investigation of the matter, the HRC found reasonable cause to believe that Learned's allegations were true. 1 Learned did not pursue the matter by filing a charge with the Equal Employment Opportunity Commission (EEOC), and apparently the HRC never forwarded a copy of Learned's complaint to the EEOC as requested on the HRC form complaint. Consequently, Learned never received a right-to-sue letter from the EEOC. Nevertheless, Learned thereafter

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filed this action in the United States District Court for the Western District of Washington.

        Learned alleged that Bellevue discriminated against him in violation of section 704(a) of Title VII, 42 U.S.C. 2000e-3, 2 and deprived him of his civil rights under the fourteenth amendment in violation of 42 U.S.C. 1983. The district court granted Bellevue's motion for summary judgment because the court found that the evidence did not support a deprivation of due process or equal protection, or a viable claim under Title VII. Because the summary judgment pertained to all federal claims alleged in the complaint, the court dismissed Learned's pendent claims for relief. Learned does not challenge the dismissal of his pendent state claims.

        DISCUSSION

        We review a grant of summary judgment de novo. Salgado v. Atlantic Richfield Co., 823 F.2d 1322, 1324 (9th Cir.1987). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there is a genuine issue as to any material fact and, if not, whether the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Idaho v. Hodel, 814 F.2d 1288, 1292 (9th Cir.), cert. denied sub nom. Coeur D'Alene Tribe of Indians v. Idaho, --- U.S. ----, 108 S.Ct. 159, 98 L.Ed.2d 114 (1987).

       I. TITLE VII

        Bellevue argued for the first time on appeal that Learned's Title VII claims are barred because Learned did not file a complaint with and did not receive notice of a right-to-sue from the EEOC as required under 42 U.S.C. section 2000e-5(e) and (f)(1). Learned's failure to comply with the statutory prerequisites may or may not affect jurisdiction under Title VII. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (filing a timely charge of discrimination...

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