Douglas v. CA. Dept. of Youth Auth.

• Decision Date: 14 November 2001
• Docket Number: DEFENDANT-APPELLEE,PLAINTIFF-APPELLANT,No. 99-17140,99-17140
• Citation: 271 F.3d 812
• Parties: (9th Cir. 2001) DOSSEY DOUGLAS,v. CALIFORNIA DEPARTMENT OF YOUTH AUTHORITY,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 812

271 F.3d 812 (9th Cir. 2001)

DOSSEY DOUGLAS, PLAINTIFF-APPELLANT v. CALIFORNIA DEPARTMENT OF YOUTH AUTHORITY, DEFENDANT-APPELLEE

No. 99-17140

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 4, 2001

Filed November 14, 2001

Corrected: November 26, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

David C. Anton, Davis, California, attorney for the plaintiff-appellant.

Teresa Michelle Laird, Deputy Attorney General, Oakland, California, attorney for the defendant-appellee.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, District Judge, Presiding. D.C. No.CV 98-01281-WBS/PAN

Before: Pregerson, Ferguson, and Hawkins, Circuit Judges.

Pregerson, Circuit Judge:

Dossey Douglas ("Douglas") was denied employment by the California Youth Authority ("CYA") because a vision test indicated that he was color-blind. Douglas brought suit against CYA for its failure to hire him under Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(a), and Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794. The district court granted summary judgment to CYA on the ground that Douglas's claims are barred by the applicable statutes of limitations. Douglas argues on appeal that his claims are timely under the continuing violations doctrine because the CYA's discriminatory policy was on-going. Alternatively, Douglas argues that his failure to comply with the statutes of limitations should be excused under the doctrines of equitable tolling or equitable estoppel. On appeal, CYA argues for the first time that the Eleventh Amendment is a defense to both claims.

With respect to Douglas's ADA claim, we remand the claim to the district court to determine whether CYA waived its sovereign immunity defense in this case. With respect to Douglas's Section 504 claim, we conclude that California waived its sovereign immunity defense by accepting federal Rehabilitation Act funds. Because we determine that Douglas's claims are timely under the continuing violations doctrine, we do not reach Douglas's equitable tolling or estoppel arguments.

I.

Douglas, an African-American, first applied for a position as a Group Supervisor with the defendant, CYA, in 1994. Douglas served as an air traffic controller in the United States Navy at the Alameda Naval Air Station. As an air traffic controller, Douglas interpreted colored lights on panels, screens, and related instruments, despite his color vision deficiency. Douglas was honorably discharged from the Navy after twelve years of service. He moved from the Bay Area to Sacramento and began looking for work in the Sacramento area.

In the fall of 1994, Douglas learned that CYA was accepting applications for the position of Group Supervisor, a job that entails supervising youthful offenders in CYA facilities. The screening process for applicants involves a written examination, oral interviews, a background check, and a physical examination. CYA administers the written examination in the fall of every other year and keeps the applications on file between examination periods.

Douglas took and passed the written examination for the position in November 1994. Over the following year and a half, Douglas passed the other screening tests. In March of 1995, CYA notified Douglas that he was ranked fourth on the eligibility list for hiring. Three months later, CYA adopted for the first time a color vision standard for the position of Group Supervisor. CYA notified Douglas of the new color vision standard by letter on June 1, 1995. On January 18, 1996, CYA offered Douglas a position at its DeWitt Facility, conditioned on his passing additional medical tests, including a vision test.

One week later, CYA tested Douglas's vision. CYA notified Douglas on February 1, 1996 that he had failed the color vision test. CYA informed Douglas that he could pay for an additional vision test at his own expense (a "Farnwsorth D15" test), and that if he passed the second test he would be hired. Douglas sought a private doctor, Dr. Shinfuku, who administered the Farnsworth D-15 test to Douglas on February 5, 1996. Dr. Shinfuku determined that Douglas had a "moderate" color vision deficiency. The Chief Medical Officer of CYA reviewed Dr. Shinfuku's results and concluded that Douglas failed the Farnsworth D-15 test. CYA notified Douglas on March 1, 1996 that he failed the vision test, and that he could appeal to the State Personnel Board within thirty days.

At Douglas's request, Dr. Shinfuku reviewed the CYA job posting, which specified that persons with mild to moderate color vision deficiencies would be eligible for the Group Supervisor position. Dr. Shinfuku wrote a letter to CYA stating that Douglas was qualified under this standard. A second doctor tested Douglas and also concluded that Douglas had a "moderate" color vision deficiency.

On March 24, 1996, Douglas went to the CYA "Equal Opportunity Office" ("EEO") and met with an Equal Opportunity Technician. In response to Douglas's question about available avenues for appeal, the officer explained to Douglas that he could file a complaint with the EEO, and appeal to the California State Personnel Board. The officer did not instruct Douglas to file an appeal with the federal Equal Employment Opportunity Commission ("EEOC")-or explain that the EEO was different from the EEOC.

In late March of 1996, Douglas submitted a complaint to the EEO office and appealed CYA's decision to the State Personnel Board. On May 2, 1996, Douglas's discrimination charge filed with the EEO office was denied. While awaiting the results of the State Personnel Board's decision, Douglas re-tested for the position of Group Supervisor in the fall of 1996. The State Personnel Board notified Douglas on February 27, 1997 that his appeal was denied and informed him for the first time of his right to file an action in state or federal court, or to file a discrimination charge with the EEOC or California Fair Employment and Housing Department ("CFEH"). Throughout 1996 and 1997, Douglas was unrepresented by counsel.

Douglas filed a discrimination charge with the federal EEOC on April 9, 1997. On February 23, 1998, the EEOC issued a "cause finding," based on its determination that the CYA color vision requirement for the Group Supervisor position violated the ADA. Douglas filed suit in federal court in July 1998, alleging violations of Title I of the ADA and Section 504 of the Rehabilitation Act of 1973.¹ Douglas sought money damages and injunctive relief.²

CYA moved for summary judgment on the grounds that Douglas's ADA claim was barred for failure to timely exhaust his administrative remedies, and that his Rehabilitation Act claim was filed after the statute of limitations had expired. Douglas defended against summary judgment by arguing that both his ADA and Rehabilitation Act claims were filed timely under a continuing violations theory. Douglas also argued that if the court found the Rehabilitation Act claim untimely, it should apply equitable tolling or estoppel to save the claim. On August 27, 1999, the district court rejected each of these theories and granted summary judgment to CYA on both the ADA and Rehabilitation Act claims. Douglas timely appealed.

II.

Before addressing the timeliness of Douglas's claims, we first consider California's new argument that it is protected from suit in federal court by the Eleventh Amendment. California relies upon the Supreme Court's recent decision in Board of Trustees of the Univ. of Ala. v. Garrett , 531 U.S. 356, 121 S. Ct. 955 (2001). In Garrett, the Supreme Court held that ADA Title I claims against states for money damages are barred by the Eleventh Amendment. Id . at 968. Although Garrett was decided in February, 2001, California waited until May 21, 2001, two weeks before oral argument was scheduled, to notify the court of Garrett and assert the Eleventh Amendment defense. We ordered supplemental briefing to address the impact of Garrett on the instant case.

A.

States are protected by the Eleventh Amendment from suits brought by citizens in federal court. Hans v. Louisiana, 134 U.S. 1, 15 (1890); College Sav. Bank v. Florida Prepaid Post-secondary Educ. Expense Bd., 527 U.S. 666, 669 (1999). There are only three exceptions to this general rule. First, a state may waive its Eleventh Amendment defense. College Sav. Bank, 527 U.S. at 670, (citing Clark v. Barnard, 108 U.S. 436, 447-48 (1883)). Second, Congress may abrogate the States' sovereign immunity by acting pursuant to a grant of constitutional authority. Kimel v. Florida Board of Regents, 528 U.S. 62, 80 (2000). Third, under the Ex parte Young doctrine, the Eleventh Amendment does not bar a "suit against a state official when that suit seeks . . . prospective injunctive relief." Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996).

The central question in Garrett was whether Congress validly abrogated the states' Eleventh Amendment immunity under Title I the ADA. 121 S. Ct. at 961. In recent years, the Supreme Court has imposed a two-part inquiry for determining whether Congress acts within its powers when it attempts to abrogate the states' Eleventh Amendment immunity. See Seminole Tribe, 517 U.S. at 55. First, courts must ask "whether Congress unequivocally expressed its intent to abrogate" the states' immunity in the legislation itself. Kimel, 528 U.S. at 73. If the answer to this first inquiry is yes, then courts must next ask "whether Congress acted pursuant to a valid grant of constitutional authority." Id.

Congress acts pursuant to a valid grant of constitutional authority under § 5 of the Fourteenth Amendment when it enacts legislation with a "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id. (citing City of Boerne v. Flores, 521 U.S. 507, 520 (1997)). This "congruence...