Green v. Los Angeles County Superintendent of Schools, 88-5830

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore CANBY, WIGGINS and O'SCANNLAIN; WIGGINS
Citation883 F.2d 1472
Parties50 Fair Empl.Prac.Cas. 1233, 51 Empl. Prac. Dec. P 39,292, 58 USLW 2169, 55 Ed. Law Rep. 898 Bobbie Jean GREEN, Plaintiff-Appellant, v. LOS ANGELES COUNTY SUPERINTENDENT OF SCHOOLS; Los Angeles County Office of Education; Los Angeles County Board of Education, Defendants-Appellees.
Docket NumberNo. 88-5830,88-5830
Decision Date30 August 1989

Bobbie Jean Green, Bellingham, Wash., pro se.

Lamont N. White, Washington, D.C., for plaintiff-appellant.

Tom A. Jerman, Los Angeles, Cal., for defendants-appellees.

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

Before CANBY, WIGGINS and O'SCANNLAIN, Circuit Judges.

WIGGINS, Circuit Judge:

Appellant Bobbie Jean Green appeals the district court's dismissal of her discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982) and the Civil Rights Act of 1866, 42 U.S.C. Sec. 1983 (1982) because they were untimely. The district court held that Green's Title VII claim was untimely under 42 U.S.C. Sec. 2000e-5(c), (e) because she filed her charge of discrimination with the California Department of Fair Employment and Housing (DFEH) more than 240 days after the last act of alleged discrimination, and the DFEH did not terminate its processing of Green's claim by waiving jurisdiction to the Equal Employment Opportunity Commission (EEOC) until more than 300 days from the last act of alleged discrimination. The district court dismissed Green's section 1983 claim as untimely because it was filed more than a year after the Supreme Court's decision in Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985).

Green appeals the dismissal of both claims. We reverse the dismissal of the Title VII claim and affirm the dismissal of the section 1983 claim.

A. Title VII Time Limit Provisions

Under section 706(e) of Title VII, 42 U.S.C. Sec. 2000e-5(e), 1 a complainant must file charges with the EEOC within 180 days of the occurrence of the alleged discrimination. If, however, as is the case here, a complainant initially institutes proceedings with a state or local agency with authority to grant or seek relief from the alleged discrimination, the time limit for filing with the EEOC is extended to 300 days. Id.

Section 706(c) of Title VII, 42 U.S.C. Sec. 2000e-5(c) 2 provides that a charge may

                not be filed with the EEOC "before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated."    The sixty day provision is designed to "give States and localities an opportunity to combat discrimination free from premature federal intervention."    EEOC v. Commercial Office Products Co., 486 U.S. 107, 108 S.Ct. 1666, 1669, 100 L.Ed.2d 96 (1988).  The net effect of sections 2000e-5(c) and 2000e-5(e) is that a complainant who wishes to file a charge of discrimination with the EEOC must file the charge with the appropriate state or local agency within 240 days of the alleged discriminatory conduct in order to ensure that the charge may be filed with the EEOC within the 300-day limit.  Id.  Even if the complainant files with the appropriate state or local agency after 240 days, however, "the charge still may be timely filed with the EEOC if the state or local agency terminates its proceedings before 300 days."    Id
B. Facts and Proceedings Below

Green was hired by appellee Los Angeles County Office of Education (LACOE) on October 30, 1980, as a teleprocessing analyst. Except for a short period following an automobile accident, she worked in that capacity until either April 6 or April 10, 1984. 3

Green filed a charge of discrimination against LACOE with the DFEH alleging race and sex discrimination and sexual harassment. She alleged that she was sexually harassed by other employees and was denied training and relocation because she was a black woman. The charge, which indicated that the most recent incident of discrimination occurred on April 10, 1984, was received by the DFEH on January 24, 1985, 289 days after April 10, 1984. On January 31, 1985, 296 days after April 10, 1984, a DFEH consultant sent Green a letter stating that the DFEH "will waive processing of your complaint to the federal Equal Employment Opportunity Commission.... The Department of Fair Employment and Housing will close your case."

On February 5, 1985, 301 days after April 10, 1984, the DFEH district administrator transmitted Green's charge to the EEOC with a transmittal form, indicating: "Pursuant to the worksharing agreement, this charge is to be initially processed by the EEOC." The worksharing agreement then in effect between the EEOC and the DFEH provided, in relevant part, that each agency was the agent of the other for the purpose of receiving charges; that charges received first by DFEH within 241 and 300 days after the alleged discrimination would be processed initially by EEOC and that the DFEH waived its 60-day period of exclusive jurisdiction over these charges; and that notwithstanding the waiver provisions, DFEH could request in writing, and be granted, the right initially to process any charge.

On February 10, 1985, the district administrator sent a "Notice of Case Closure" to Green which stated:

The consultant assigned to handle subject discrimination complaint which you filed with the Department of Fair Employment and Housing has recommended that the case be closed on the basis of processing waived to another agency.

Please be advised that this recommendation has been accepted and your case has been closed effective 2/07/85.

Green received a Right to Sue Notice from the EEOC and filed this pro se action on July 28, 1986, alleging claims under both Title VII and section 1983. On November 12, 1987, LACOE filed a motion for summary judgment on the grounds that Green's Title VII and section 1983 claims were untimely. LACOE argued that In a minute order issued January 7, 1987, the district judge held that Green had produced sufficient evidence to defeat the portion of LACOE's motion directed at the merits of Green's Title VII claim, but requested further briefing on the timeliness issues. After receiving additional briefs from both parties, the court issued a second minute order dismissing the action. The district court noted that the January 31, 1985, notice from DFEH was "in the future tense" and the February 10, 1985, notice indicated that DFEH had accepted a "recommendation" and had closed the case "effective 02/07/85." Based on these facts, the court concluded that "there can be no genuine dispute that the waiver in this case occurred after the expiration of the 300 day limitation period." The worksharing agreement was neither raised by the parties nor discussed by the district court. The court also held that Green had not filed her section 1983 claim within one year from the date of Wilson and that it was thus untimely. This appeal followed. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982).

Green's Title VII claim was untimely under section 2000e-5(c) because Green filed her charge after 240 days and the DFEH did not waive its right to process Green's claim until February 7, 1985, 303 days after the latest alleged incident of discrimination. LACOE alleged that Green's section 1983 claim should be dismissed because she failed to file it within one year of Wilson as required under Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). LACOE also argued that Green had failed to establish a prima facie case of race or sex discrimination.


Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is clearly entitled to prevail as a matter of law. See Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 677 (9th Cir.1984); State ex rel. Edwards v. Heimann, 633 F.2d 886, 888 (9th Cir.1980). We view the evidence in the light most favorable to Green in order to determine whether there was a genuine issue as to any material fact. See Ybarra, 723 F.2d at 677; Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 759 (9th Cir.1980).

A. Title VII Claim

The issue on appeal is whether Green's claim was filed with the EEOC within the 300-day limitation period contained in section 2000e-5(e). At the outset we must determine the date the 300-day period was triggered. Green contends that the date from which the 300-day period should be calculated is January 28, 1986. Green argues that LACOE's discrimination against her did not end on April 10, 1984, but continued afterwards in the form of denied medical leave and benefits to which she was entitled, as well as poor recommendations to other potential employers. She contends that LACOE's discrimination against her continued until she was formally discharged on January 28, 1986. In essence, Green relies on the "continuing violation" doctrine, which, if employed, would bring the pre-April 10, 1984, conduct at which her claim is directed within the 300-day period. See Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th Cir.) ("[A] systematic policy of discrimination is actionable even if some or all of the events evidencing its inception occurred prior to the limitations period ... [because] the continuing system of discrimination operates against the employee and violates his or her rights up to a point in time that falls within the applicable limitations period."), cert. denied, 459 U.S. 971, 103 S.Ct. 302, 74 L.Ed.2d 283 (1982).

LACOE contends that we should not consider this argument because it was not raised below. We need not decide this question, however, because the discriminating conduct alleged to have taken place after April 10, 1984, was not contained in Green's EEOC charge.

Incidents of discrimination not included in an EEOC charge may not be considered by a federal court...

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