London v. Coopers & Lybrand

• Decision Date: 07 May 1981
• Docket Number: No. 79-3159,79-3159
• Citation: 644 F.2d 811
• Parties: 26 Fair Empl.Prac.Cas. 755, 26 Empl. Prac. Dec. P 31,832 Denny Lee LONDON, Plaintiff-Appellant, v. COOPERS & LYBRAND, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 811

644 F.2d 811

26 Fair Empl.Prac.Cas. 755,

26 Empl. Prac. Dec. P 31,832

Denny Lee LONDON, Plaintiff-Appellant, v. COOPERS & LYBRAND, Defendant-Appellee.

No. 79-3159.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 8, 1981.

Decided May 7, 1981.

Nancy Kelso, Kelso & Young, Los Angeles, Cal., for plaintiff-appellant.

Cynthia H. Plevin, San Francisco, Cal., for defendant-appellee.

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

Before GOODWIN and ANDERSON, Circuit Judges, and MURPHY, ^* Senior District Judge.

J. BLAINE ANDERSON, Circuit Judge:

Denny Lee London appeals the dismissal of her Second Amended Complaint, and concurrent dismissal of her action below, charging the defendant Coopers & Lybrand with unlawful employment discrimination. We affirm in part and reverse in part.

I. BACKGROUND

The background to this appeal illustrates once again the burden which the failure of Congress to provide clear guidelines on the question of limitations periods for private enforcement of federal civil rights statutes places upon litigants, administrative agencies, and the courts. The delay and uncertainty engendered by the confusion arising from overlapping remedies and procedures benefits neither of the parties before us.

London was discharged by Coopers & Lybrand, an accounting firm, from her position as a junior accountant on September 25, 1974. She filed an employment discrimination charge with the Equal Employment Opportunity Commission on July 7, 1975. In that charge, she alleged that her discharge violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The E.E.O.C. referred London's charge to the California Fair Employment Practices Commission, which apparently failed to effect a conciliation between the parties. On approximately July 21, 1978, London received a "right to sue" letter from the E.E.O.C.

On July 25, 1978, London filed a civil complaint in federal district court in which she charged Coopers & Lybrand with sex and national origin discrimination under Title VII, and also charged that her termination violated the Civil Rights Act of 1866, 42 U.S.C. § 1981. London is a naturalized citizen of Chinese descent. In her prayer for relief, London sought compensatory and punitive damages and an order directing Coopers & Lybrand to reinstate her to her former position with all rights and benefits.

After London filed a First Amended Complaint, Coopers & Lybrand moved to dismiss, primarily on the ground that both London's Title VII and § 1981 claims were time-barred. In a terse order filed December 26, 1978, the district court dismissed London's First Amended Complaint, and granted her 10 days to file an amended complaint. In her Second Amended Complaint, London offered no allegations under Title VII, but instead alleged a cause of action arising under § 1981, and a pendent state claim arising under California Labor Code § 1420.

The Second Amended Complaint expanded considerably upon the allegations set forth in London's first two complaints, and included allegations relating to allegedly discriminatory conduct taking place after she filed her initial complaint with the E.E.O.C. Paragraph 7 of that complaint alluded to four instances of post-discharge discrimination on the part of Coopers & Lybrand:

(1) On November 7, 1977, London discovered the existence of two negative performance reports prepared prior to her discharge which were not revealed to her, allegedly in violation of company policy. According to London, the concealment of the existence of these reports "deluded" her into representing to potential employers that her performance at Coopers & Lybrand had been satisfactory, while employers were instead receiving negative performance reports.

(2) Coopers & Lybrand made other employers aware, in some unspecified manner, that London had been terminated because she was a "troublemaker."

(3) In September or October, 1976, Coopers & Lybrand sent an unsolicited letter to the University of Southern California Graduate School of Business Administration, where London was then a student, informing the school's placement office that she had filed the E.E.O.C. charge.

(4) Coopers & Lybrand informed several other accounting firms that London had filed with the E.E.O.C.

Coopers & Lybrand filed a motion to dismiss the Second Amended Complaint. On February 6, 1979, the district court granted Coopers & Lybrand's motion, and on February 14, 1979, entered an order dismissing London's action. The court dismissed London's Title VII action because she had failed to amend her complaint as to Title VII, and dismissed both the § 1981 and California state claim with prejudice. This appeal followed.

II. DISCUSSION

A. Title VII

We note at the outset that London must be deemed to have waived her Title VII cause of action by failing to allege 42 U.S.C. § 2000e as a ground for relief in her Second Amended Complaint, even though both parties have briefed on appeal the question whether London's initial filing with the E.E.O.C. was timely. It has long been the rule in this circuit that a plaintiff waives all causes of action alleged in the original complaint which are not alleged in the amended complaint. See Sacramento Coca-Cola Bottling Co. v. Chauffeurs, Etc., Local 150, 440 F.2d 1096 (9th Cir.), cert. denied, 404 U.S. 826, 92 S.Ct. 57, 30 L.Ed.2d 54 (1971); Loux v. Rhay, 375 F.2d 55 (9th Cir. 1967); Bullen v. De Bretteville, 239 F.2d 824 (9th Cir. 1956), cert. denied sub nom. Treasure Company v. Bullen, 353 U.S. 947, 77 S.Ct. 825, 1 L.Ed.2d 856 (1957). We are well aware that other circuits do not look with favor upon this rule, see e. g., Wilson v. First Houston Investment Corp., 566 F.2d 1235, 1238 (5th Cir. 1978), vacated and remanded on other grounds, 444 U.S. 959, 100 S.Ct. 442, 62 L.Ed.2d 371 (1979), but we as a panel are not at liberty to re-examine its validity.

When the district court dismissed London's cause of action under Title VII, it did so because London failed to amend as to Title VII in her Second Amended Complaint. The court acted properly in doing so according to the Ninth Circuit rule. Our sole concern thus is the timeliness of London's complaint under § 1981.

B. Equitable Tolling

The California statute of limitations applicable to § 1981 is Cal.Code Civ.Pro. § 338(1), which prescribes a three-year limitation period for actions based on liability created by statute. Bratton v. Bethlehem Steel Corp., --- F.2d ---- (9th Cir., Sept. 29, 1980). London has alleged a discharge which occurred approximately four years prior to the filing of her complaint, and several post-discharge actions on the part of Coopers & Lybrand which would appear to have been taken less than three years prior to filing. We must determine which, if any, of these charges of allegedly discriminatory actions is now time-barred by § 338(1).

London argues first that as to the charge that she was terminated for discriminatory reasons, the statute of limitations should be tolled during the pendency of her administrative complaint before the California Fair Employment Practices Commission. London acknowledges the principle of Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), that the filing of an administrative complaint with the E.E.O.C. does not toll the running of the statute of limitations on a cause of action under § 1981 based on the same facts. She urges us to apply a different rule, however, to a charge filed with a state administrative agency whose mission is the processing of employment discrimination complaints. She cites to California decisions such as Jones v. Tracy School District, 27 Cal.3d 99, 611 P.2d 441, 165 Cal.Rptr. 100 (1980), and Elkins v. Derby, 12 Cal.3d 410, 525 P.2d 81, 115 Cal.Rptr. 641 (1974), which apply an "equitable tolling" principle holding that any state statute of limitations is tolled where the plaintiff is pursuing an administrative remedy for the same alleged wrongdoing.

We do not agree with London that California's "equitable tolling" principle is applicable under the circumstances of this case. While state tolling principles are applicable in § 1981 cases where "not inconsistent" with the constitution or federal law, see Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); Conerly v. Westinghouse Corp., 623 F.2d 117 (9th Cir. 1980); we conclude that application of the California equitable tolling rule here would be inconsistent with federal law.

London correctly points out that there was no state tolling principle available in Johnson. That factor standing alone, however, does not distinguish the present case from Johnson. The holding in Johnson was based upon the independence of the separate remedies afforded by Title VII and § 1981. As the Court noted in Johnson:

"... the fundamental answer to petitioner's argument lies in the fact presumably a happy one for the civil rights claimant that Congress clearly has retained § 1981 as a remedy against private employment discrimination separate from and independent of the more elaborate and time-consuming procedures of Title VII. Petitioner freely concedes that he could have filed his § 1981 action at any time after his cause of action accrued; in fact, we understand him to claim an unfettered right so to do. Thus, in a very real sense, petitioner has slept on his § 1981 rights. The fact that his slumber may have been induced by faith in the adequacy of his Title VII remedy is of little relevance inasmuch as the two remedies are truly independent."

421 U.S. at 465, 466, 95 S.Ct. at 1722, 1723.

Other circuits have generally refused to toll the limitation period for causes of action arising under federal civil rights statutes on the basis of administrative filings with state agencies. See Daughtry v. King's Department Stores, 608 F.2d 906 (1st Cir. 1979) (Title VII and § 1981); Everson v....