861 F.2d 198 (9th Cir. 1988), 87-6553, Mitchell v. Los Angeles Community College Dist.

Docket Nº:87-6553, 87-6618.
Citation:861 F.2d 198
Party Name:Richard L. MITCHELL, Jr., Plaintiff-Appellant, v. LOS ANGELES COMMUNITY COLLEGE DISTRICT; Leslie Koltai; Virginia F. Mulrooney; Kenneth S. Washington; Catherine Close; Walter C. MacIntosh; Rodney A. Patterson, Defendants-Appellees.
Case Date:August 17, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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861 F.2d 198 (9th Cir. 1988)

Richard L. MITCHELL, Jr., Plaintiff-Appellant,



Virginia F. Mulrooney; Kenneth S. Washington;

Catherine Close; Walter C. MacIntosh;

Rodney A. Patterson,


Nos. 87-6553, 87-6618.

United States Court of Appeals, Ninth Circuit

August 17, 1988

Submitted on Briefs Aug. 5, 1988.[*]

Redesignated as Opinion Nov. 8, 1988.

As Amended Jan. 11, 1989.

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Richard L. Mitchell, Jr., Los Angeles, Cal., for plaintiff-appellant.

Warren S. Kinsler, Los Angeles Community College Dist., and Thomas Scheerer, Deputy Atty. Gen., Los Angeles, Cal., for defendants-appellees.

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

Before KOELSCH, FARRIS and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Richard Mitchell appeals from the district court's grant of summary judgment to the defendants. The appellant brought a complaint alleging employment discrimination based on age, sex and race. The complaint raised claims under 42 U.S.C. Secs. 1981, 1983 and 1985; 29 U.S.C. Secs. 621-34 (Age Discrimination in Employment Act) (ADEA); 42 U.S.C. Sec. 2000e-2000e-17 (Equal Employment Opportunities) (Title VII); for declaratory and injunctive relief and pendent state claims. The district court found that the appellant's 1981, 1983 and 1985 claims, as well as his ADEA and Title VII claims, were barred by the statute of limitations. Alternatively, the court found that the appellant had failed to raise a genuine issue of material fact to support his allegations of discrimination. The court also found that the defendant Los Angeles Community College District (district) and the individual defendants, enjoyed eleventh amendment immunity from damages or injunctive relief. Further, the court held that the plaintiff's state based constitutional and statutory claims were time barred under California law. We AFFIRM.


The appellant, a 56 year old black male, was a teacher in various capacities in Los Angeles public schools and at various community colleges in the appellee's community college district. In October, 1981, Mitchell filed applications with the district for the positions of assistant dean and dean. The district maintained a "pool" of eligible candidates for these positions at the various Los Angeles community colleges. Members of the pool were eligible for these positions as they became open. Pool members did not have to reapply for these positions as they became available. In 1983, the appellant also applied for the position of Senior Director of Occupational and Technical Education with the district. This position was specially advertised and was not filled from a pool.

None of the application materials used by the district revealed an applicant's race

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to those making hiring decisions. Since 1983, these materials also do not reveal an applicant's age. Mitchell became eligible for various assistant dean and dean positions but was never offered a position. He was not recommended for hire after he filed a discrimination claim against the district, but the defendant responsible for not recommending him was unaware of his action. Only four applicants were reviewed for the Senior Director position. An internal policy required that five people be interviewed for the position by a selection committee; but, instead of readvertising the position, the district interviewed all of the applicants including Mitchell. All members of the selection committee rated him as below average in "knowledge of the area of the position" and quality and amount of relevant experience. The committee rated the successful candidate, a white woman, as "far above average" in these and all other categories of evaluation.


Early in 1984, the appellant filed a complaint against the district with the U.S. Department of Education Office for Civil Rights (OCR) alleging discrimination on the basis of race, sex and age in the district's Senior Director decision. Because the complaint alleged employment discrimination, the filing with the OCR was deemed to be a simultaneous filing with the Equal Employment Opportunity Commission (EEOC). During the same time period, Mitchell also pursued internal remedies with the district as well as filing a charge with the state Department of Fair Employment and Housing (DFEH). The DFEH informed Mitchell that, pursuant to an agreement between the EEOC and the DFEH, it would defer its investigation to the EEOC. The EEOC, in turn, deferred its investigation to the OCR. 1

On November 7, 1984, the OCR issued its findings and determination. It concluded that Mitchell was not selected because he lacked the necessary qualifications for the Senior Director position and not because of his race, sex or age. The OCR also found insufficient statistical evidence to conclude that there was a pattern and practice of discrimination on the basis of sex, race or age in the district's hiring for administrative positions. On March 15, 1985, the EEOC issued a "Right to Sue" notice to Mitchell. He received it on March 19, 1985.

On July 17, 1986, Mitchell filed this action in state court. Apparently, all of the defendants except for appellee Catherine Close were properly served. The defendants removed the case to federal court. On March 19, 1987, a default was entered against Close. On April 27, 1987, the district court found good cause to set aside the default because Close was never properly served. On February 9, 1987, all the defendants moved for summary judgment. On September 30, 1987, the court granted summary judgment to all defendants on all claims.

The district court found that the defendants did not discriminate against the plaintiff on the basis of race, age or sex, nor did they deprive him of due process. Relying on Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 1949, 85 L.Ed.2d 254 (1985) the court determined that a one year statute of limitations applied to Mitchell's 42 U.S.C. Secs. 1981, 1983 and 1985 claims. Thus, any claims arising before July 17, 1985, were time barred. The court found these to include all claims relating to the district's hiring decisions regarding the Senior Director position, the retaliation claims, and the claims that the district failed to properly investigate Mitchell's internal claim. The court also found that the plaintiff's ADEA and Title VII claims were barred because he failed to bring this action within 90 days of the EEOC's "Right to Sue" notice. Alternatively, the court found that the appellant had failed to make out a prima facie Title VII employment discrimination

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claim under McDonnell Douglas Corp. v....

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