Lukovsky v. City and County of San Francisco

• Citation: 535 F.3d 1044
• Decision Date: 07 August 2008
• Docket Number: No. 06-16665.,No. 06-16946.,06-16665.,06-16946.
• Parties: Alex LUKOVSKY; Muhammed Khan; Larry Mitchell; Antonio Huggins; Samson Asrat, Plaintiffs, and Anatoliy Zolotarev; Yevgeniy Skuratovsky, individually and on behalf of class members, Plaintiffs-Appellants, v. CITY AND COUNTY OF SAN FRANCISCO; John Sadorra; Renato Solomon; Vernon Crawley; Michael Ellis; Doris Lanier, Defendants-Appellees. Richard Glassman; Morris Jacobs; Michael Hall; Ignacio Reyes, Plaintiffs-Appellants, v. City and County of San Francisco; Elson Hao; Jim Wachob; Alan Deguzman; Tom Hidayat, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

535 F.3d 1044

Alex LUKOVSKY; Muhammed Khan; Larry Mitchell; Antonio Huggins; Samson Asrat, Plaintiffs, and Anatoliy Zolotarev; Yevgeniy Skuratovsky, individually and on behalf of class members, Plaintiffs-Appellants, v. CITY AND COUNTY OF SAN FRANCISCO; John Sadorra; Renato Solomon; Vernon Crawley; Michael Ellis; Doris Lanier, Defendants-Appellees.

Richard Glassman; Morris Jacobs; Michael Hall; Ignacio Reyes, Plaintiffs-Appellants, v. City and County of San Francisco; Elson Hao; Jim Wachob; Alan Deguzman; Tom Hidayat, Defendants-Appellees.

No. 06-16665.

No. 06-16946.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 13, 2008.

Filed August 7, 2008.

Edith J. Benay, San Francisco, CA, for the plaintiffs-appellants.

Jonathan C. Rolnick, City of San Francisco, San Francisco, CA, for the defendants-appellees.

Appeal from the United States District Court for the Northern District of California; William H. Alsup, District Judge, Presiding. D.C. Nos. CV-05-00389-WHA, CV-06-02304-WHA.

Before: DIARMUID F. O'SCANNLAIN, HAWKINS, and M. MARGARET McKEOWN, Circuit Judges.

HAWKINS, Circuit Judge:

These consolidated appeals involve suits against the City and County of San Francisco, San Francisco Municipal Transportation Agency ("MUNI"), and various individual defendants (collectively, "Defendants") for race and national origin discrimination in violation of 42 U.S.C. §§ 1981, 1983, 1985 & 1986. Plaintiffs allege that Defendants discriminated against them by giving preferential hiring treatment to Asian and Filipino workers. We do not consider the merits of the plaintiffs' allegations, however, as the only issue before us is whether their claims are barred by the statute of limitations, as the district court found. We agree with the district court that (1) the cause of action accrued and the statute of limitations began to run when the plaintiffs received notice they would not be hired, and (2) equitable estoppel does not prevent the Defendants from asserting a statute of limitations defense. Accordingly, we affirm the district court in all respects.

FACTS AND PROCEDURAL HISTORY

Zolotarev, Appeal No. 06-16665:

In 1999 through 2000, MUNI advertised various provisional positions for electrical transit system mechanics ("7371 positions"). MUNI considered applications and written-performance tests, as well as some in-person interviews. In October 2000, MUNI obtained funding to hire several permanent 7371 mechanics, and issued a job announcement for these permanent positions. The announcement contained the following requirement:

Verification (proof) of all experience and/or training needed to qualify must be submitted with the application. . . . Verification may be waived if impossible to obtain. The applicant must submit a signed statement with the application explaining why verification cannot be obtained . . . Failure to submit the required verification or request for waiver in a timely manner may result in the rejection of the application.

Two plaintiffs, Anatoliy Zolotarev and Yevgeniy Skuratovsky, filed their initial complaint in January 2005, together with several other plaintiffs who are not a party to this appeal ("the Lukovsky action").¹ These plaintiffs alleged that the Defendants discriminated on the basis of race— giving preferential treatment to Asian and Filipino applicants for the provisional and permanent 7371 positions by hiring Asian and Filipino applicants who did not meet the minimum qualifications. They also alleged Defendants failed to provide information about the 7371 openings to potential candidates who were not Asian or Filipino.

Plaintiff Skuratovsky applied for two provisional 7371 positions in 1999 and 2000, but was ranked below the hiring cutoff for both. He applied for a permanent 7371 position in October 2000, but failed to include an experience verification or seek a waiver of the requirement. He received notice in November 2000 that his application had been disqualified for failure to provide the verification.

Plaintiff Zolotarev did not apply for any of the 7371 positions in 1999 or 2000, However, he had previously applied for a similar mechanic position in 1998, and claims to have been informed that his application "would remain in the active file should a vacancy occur in the Division." He was not contacted by MUNI about any jobs in 2000 or 2001.

The Lukovsky plaintiffs sought and were denied class certification. The court's order, however, permitted the plaintiffs' counsel to send letters to other individuals who could potentially have similar claims, so that all such claims might be tried by the same judge. The district court then granted summary judgment in favor of the Defendants as to Skuratovsky and Zolotarev on statute of limitations grounds, concluding that these plaintiffs knew or should have known of their injury —i.e., that they had not been hired for the permanent position — for several years before they filed their complaint.

Glassman, Appeal No. 06-16946:

Four plaintiffs—Richard Glassman, Morris Jacobs, Michael Hall and Ignacio Reyes—were applicants for 7371 positions with MUNI during 2000. Glassman applied in June 2000 and was disqualified in November 2000, purportedly for failing to provide a written verification of his prior work experience. Jacob's application was rejected in October 2000 on the same grounds, as was Reyes's application in November 2000. Hall applied for a 7371 position in October 2000 and claims he never received notification that his application was rejected.

These plaintiffs received letters regarding the Lukovsky action in January-February 2006 and filed their complaint on March 31, 2006, alleging that Defendants gave preferential treatment to Asian and Filipino applicants who did not meet the minimum qualifications for the job. They also contend Defendants modified the requirements for 7371 positions in late 2000 to purportedly make it easier to hire Asian and Filipino applicants, and that the Defendants failed to provide sufficient information about the 7371 positions to non-Asian and non-Filipino candidates.

The district court granted the Defendants' motion to dismiss the complaint under Rule 12(b)(6) of Civil Procedure on statute of limitations grounds, concluding that the plaintiffs had notice of their injury when they received the notices informing them they were not being hired, or, in the case of Hall, by early 2001 (when those accepted for the position would have reported to work).

STANDARD OF REVIEW

We review de novo the district court's dismissal on statute of limitations grounds, Mann v. American Airlines, 324 F.3d 1088, 1090 (9th Cir.2003), and the court's ruling on summary judgment, General Bedding Corp. v. Echevarria, 947 F.2d 1395, 1396 (9th Cir.1991). We review for an abuse of discretion the district court's decision that defendants should not be equitably estopped from asserting a statute of limitations defense. See Santa Maria v. Pac. Bell, 202 F.3d 1170, 1175 (9th Cir. 2000).

DISCUSSION

I. When did Plaintiffs' claims accrue?

When, as here, a federal civil rights statute does not include its own statute of limitations, federal courts borrow the forum state's limitations period for personal injury torts, which the parties agree in this case is one year under California law. Taylor v. Regents of Univ. Of Cal., 993 F.2d 710, 711 (9th Cir.1993) (applying one-year limitations period to claims brought pursuant to 42 U.S.C. §§ 1981, 1983 and 1985).² Although California law determines the length of the limitations period, federal law determines when a civil rights claim accrues. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 926 (9th Cir. 2004) (quoting Morales v. City of Los Angeles, 214 F.3d 1151, 1153-54 (9th Cir. 2000)). Accrual is the date on which the statute of limitations begins to run; under federal law, a claim accrues "when the plaintiff knows or has reason to know of the injury which is the basis of the action." Id. (quoting TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir.1999)).

Plaintiffs argue that their claims did not accrue until they knew both that they were not being hired and of the Defendants' alleged discriminatory intent. In other words, plaintiffs contend that knowledge of "injury" includes both the actual injury (failure to hire) and the legal wrong (racial discrimination). The Zolotarev plaintiffs assert they had no reason to know of the legal injury until informed years later by a MUNI employee that allegedly unqualified Asians and Filipinos had been hired; the Glassman plaintiffs claim they had no reason to know of the Defendants' discriminatory conduct until they received the letter informing them of the Zolotarev lawsuit.

Plaintiffs frame their argument in terms of the "discovery rule," which postpones the beginning of the limitations period from the date the plaintiff is actually injured to the date when he discovers (or reasonably should discover) he has been injured. See O'Connor v. Boeing North Am., Inc., 311 F.3d 1139, 1147 (9th Cir. 2002). However, this rule is already incorporated into federal accrual law. See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir.1990). The real question, as noted above, is what do we mean by "injury," that is, what must the plaintiffs "discover"—that there has been an adverse action, or that the employer acted with discriminatory intent in performing that act?

This issue has not been expressly addressed in this circuit. See Lyons v. England, 307 F.3d 1092, 1107 n. 9 (9th Cir. 2002) (noting that prior cases dealing with accrual under Title VII had not resolved "the more subtle question of when the date of a plaintiff's notice that the act was discriminatory, and not the date of the act's occurrence" should be the preferred date for commencing the statute of limitations).³ Nor has the Supreme Court had occasion to clarify the issue. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 n. 7, 122 S.Ct. 2061, 153...