Alaska Employment Law

Applicants for San Francisco-area public employment sued, alleging illegal preferential treatment of Asian and Filipino workers.  The District Court dismissed on statute of limitations grounds.  The 9th Circuit panel (Hawkins, O’Scannlain, and McKeown) affirmed.

Accrual:   The panel joined other Circuits and held that accrual starts when the plaintiff learns of the adverse treatment, without regard to knowledge of the illegal nature of the employer’s conduct.

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. Although California law determines the length of the limitations period, federal law determines when a civil rights claim accrues.  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.” . . .

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. . . . However, this rule is already incorporated into federal accrual law. . . .  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?

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In this case, as the district court found, the claim accrued when the plaintiffs received notice they would not be hired (or, in the case of plaintiffs Zolotarev and Hall, when they should have realized they had not been hired for the position). . . .   At this point, the plaintiffs knew they had been injured and by whom, . . . even if at that point in time the plaintiffs did not know of the legal injury, i.e., that there was an allegedly discriminatory motive underlying the failure to hire.

Equitable estoppel: The panel also rejected the plaintiffs’ estoppel response to the limitations defense.

The primary problem with plaintiffs’ argument is that their alleged basis for equitable estoppel is the same as their cause of action. As we have previously explained, the plaintiff must point to some fraudulent concealment, some active conduct by the defendant “above and beyond the wrongdoing upon which the plaintiff’s claim is filed, to prevent the plaintiff from suing in time.” 

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The plaintiffs in this case . . . do not point to any misrepresentation by the Defendants that concealed the composition of the applicant pool, the qualifications of those actually hired, or any promise by which the Defendants discouraged plaintiffs from timely asserting their rights. The district court properly denied the claim for equitable estoppel.

Zolotarev v. San Francisco, 2008 WL _______ (9th Cir. Aug. 7, 2008)(citations omitted)