Zolotarev v. San Francisco ( 2008 )


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  •                    FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ALEX LUKOVSKY; MUHAMMED                  
    KHAN; LARRY MITCHELL; ANTONIO
    HUGGINS; SAMSON ASRAT,
    Plaintiffs,
    and
    ANATOLIY ZOLOTAREV; YEVGENIY                   No. 06-16665
    SKURATOVSKY, individually and on
    behalf of class members,                        D.C. No.
    CV-05-00389-WHA
    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,            No. 06-16946
    v.
           D.C. No.
    CV-06-02304-WHA
    CITY AND COUNTY OF SAN
    FRANCISCO; ELSON HAO; JIM                        OPINION
    WACHOB; ALAN DEGUZMAN; TOM
    HIDAYAT,
    Defendants-Appellees.
    
    10003
    10004            ZOLOTAREV v. SAN FRANCISCO
    Appeal from the United States District Court
    for the Northern District of California
    William H. Alsup, District Judge, Presiding
    Argued and Submitted
    May 13, 2008—San Francisco, California
    Filed August 7, 2008
    Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins,
    and M. Margaret McKeown, Circuit Judges.
    Opinion by Judge Hawkins
    10006            ZOLOTAREV v. SAN FRANCISCO
    COUNSEL
    Edith J. Benay, San Francisco, California, for the plaintiffs-
    appellants.
    Jonathan C. Rolnick, City of San Francisco, San Francisco,
    California, for the defendants-appellees.
    OPINION
    HAWKINS, Circuit Judge:
    These consolidated appeals involve suits against the City
    and County of San Francisco, San Francisco Municipal Trans-
    portation Agency (“MUNI”), and various individual defen-
    ZOLOTAREV v. SAN FRANCISCO               10007
    dants (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 limita-
    tions began to run when the plaintiffs received notice they
    would not be hired, and (2) equitable estoppel does not pre-
    vent 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 provi-
    sional 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 perma-
    nent 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 appli-
    cation . . . . Verification may be waived if impossible
    to obtain. The applicant must submit a signed state-
    ment with the application explaining why verifica-
    tion 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.
    10008               ZOLOTAREV v. SAN FRANCISCO
    Two plaintiffs, Anatoliy Zolotarev and Yevgeniy Skura-
    tovsky, 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 prefer-
    ential treatment to Asian and Filipino applicants for the provi-
    sional and permanent 7371 positions by hiring Asian and
    Filipino applicants who did not meet the minimum qualifica-
    tions. They also alleged Defendants failed to provide informa-
    tion 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 posi-
    tions 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 con-
    tacted by MUNI about any jobs in 2000 or 2001.
    The Lukovsky plaintiffs sought and were denied class certi-
    fication. The court’s order, however, permitted the plaintiffs’
    counsel to send letters to other individuals who could poten-
    tially have similar claims, so that all such claims might be
    tried by the same judge. The district court then granted sum-
    mary 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
    1
    The remaining plaintiffs dismissed their claims with prejudice.
    ZOLOTAREV v. SAN FRANCISCO              10009
    —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 Fili-
    pino applicants, and that the Defendants failed to provide suf-
    ficient information about the 7371 positions to non-Asian and
    non-Filipino candidates.
    The district court granted the Defendants’ motion to dis-
    miss 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 10010
                   ZOLOTAREV v. SAN FRANCISCO
    1088, 1090 (9th Cir. 2003), and the court’s ruling on sum-
    mary 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 limita-
    tions defense. See Santa Maria v. Pac. Bell, 
    202 F.3d 1170
    ,
    1175 (9th Cir. 2000).
    DISCUSSION
    I.       When did Plaintiffs’ claims accrue?
    [1] 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 Califor-
    nia 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 limita-
    tions 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 Two
    Rivers v. Lewis, 
    174 F.3d 987
    , 991 (9th Cir.
    1999)).
    Plaintiffs argue that their claims did not accrue until they
    2
    Section 1981 was amended in 1990 to include a four-year limitations
    period for certain actions; however, this period does not apply to those
    actions which were cognizable under the pre-1990 version, such as plain-
    tiffs’ failure to hire claim. See Cholla Ready Mix, Inc. v. Civish, 
    382 F.3d 969
    , 974 n.5 (9th Cir. 2004); Patterson v. McLean Credit Union, 
    491 U.S. 164
    , 180-82 (1989).
    ZOLOTAREV v. SAN FRANCISCO                     10011
    knew both that they were not being hired and of the Defen-
    dants’ 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 discrimina-
    tion). 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 “inju-
    ry,” 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
    3
    Although the plaintiffs’ actions in this case arise under §§ 1981, 1983,
    1985, and 1986, we note that, of course, the majority of employment cases
    involve private employers. We therefore consider cases arising under other
    federal laws, such as Title VII or the ADEA, to be instructive. See, e.g.,
    Delaware State College v. Ricks, 
    449 U.S. 250
    (1980) (analyzing com-
    mencement of statute of limitations under both Title VII and Section
    1981).
    10012             ZOLOTAREV v. SAN FRANCISCO
    Supreme Court had occasion to clarify the issue. See Nat’l
    R.R. Passenger Corp. v. Morgan, 
    536 U.S. 101
    , 114 n.7
    (2002); 
    id. at 123-24
    (O’Connor, J., concurring) (recognizing
    that “although Supreme Court precedents seem to establish a
    relatively simple ‘notice’ rule . . . , courts continue to disagree
    on what the notice must be of”) (quotations omitted) (empha-
    sis in original); but see 
    id. at 114
    (noting that discrete acts,
    such as termination and refusal to hire, are easy to identify).
    [2] However, numerous other circuits have explicitly
    addressed this precise question in a variety of employment
    contexts, and have concluded that the claim accrues upon
    awareness of the actual injury, i.e., the adverse employment
    action, and not when the plaintiff suspects a legal wrong. For
    example, in Oshiver v. Levin, Fishbein, Sedran & Berman, 
    38 F.3d 1380
    (3d Cir. 1994), the court explained:
    The question arises whether a plaintiff’s discovery of
    the actual, as opposed to the legal, injury is sufficient
    to trigger the running of the statutory period. In other
    words, does the statutory period begin to run upon a
    plaintiff’s learning that he or she has been dis-
    charged from employment, for example, or does it
    begin to run only after a plaintiff comes to realize
    that the discharge constituted a legal wrong? We
    have in the past stated that a claim accrues in a fed-
    eral cause of action upon awareness of the actual
    injury, not upon awareness that this injury consti-
    tutes a legal wrong.
    
    Id. at 1386.
    The Sixth Circuit similarly opined in Amini v.
    Oberlin College, 
    259 F.3d 493
    (6th Cir. 2001):
    Amini learned of his injury when Oberlin informed
    him that he would not be hired for its vacant statis-
    tics position. As stated, the proper focus for purposes
    of determining the commencement of the [statute of]
    limitations period is on the discriminatory act itself
    ZOLOTAREV v. SAN FRANCISCO                10013
    and when that act was communicated to the plaintiff.
    Amini’s attempt to stop the running of the [ ] clock
    until he discovered the facts that led him to suspect
    discrimination is best addressed as a question of
    equitable tolling.
    
    Id. at 500;
    see also Thelen v. Marc’s Big Boy Corp., 
    64 F.3d 264
    , 267 (7th Cir. 1995) (claim accrued upon termination,
    even though plaintiff did not discover he was replaced by
    younger employee until later; “[a] plaintiff’s action accrues
    when he discovers that he has been injured, not when he
    determines that the injury was unlawful”); Dring v. McDon-
    nell Douglas Corp., 
    58 F.3d 1323
    , 1327-28 (8th Cir. 1995)
    (limitations period runs from date discriminatory act occurs,
    not when victim first perceives discriminatory motive); Hul-
    sey v. Kmart, Inc., 
    43 F.3d 555
    , 558-59 (10th Cir. 1994)
    (“notice or knowledge of discriminatory motivation is not a
    prerequisite for a cause of action to accrue . . . . it is the
    knowledge of the adverse employment decision itself that
    triggers the running of the statute of limitations”); Hamilton
    v. 1st Source Bank, 
    928 F.2d 86
    , 88-89 (4th Cir. 1990) (“To
    the extent that notice enters the analysis, it is the notice of the
    employer’s actions, not the notice of a discriminatory effect
    or motivation, that establishes the commencement of the per-
    tinent filing period.”); Merril v. S. Methodist Univ., 
    806 F.2d 600
    , 604-05 (5th Cir. 1986) (rejecting argument that court
    should focus on the date the victim perceives a discriminatory
    motive rather than the actual date of the act itself).
    [3] We find these opinions persuasive. Moreover, they are
    consistent with the Supreme Court’s opinion in Ricks, which
    involved an action under Title VII and Section 1981, and
    focused on when the plaintiff became aware of the adverse
    employment decision. Ricks concluded the statute of limita-
    tions under both commenced when the adverse decision was
    communicated to Ricks, even though the consequences of the
    action were not fully felt at that 
    time. 449 U.S. at 258-59
    ,
    261-62; see also Ledbetter v. Goodyear Tire & Rubber Co.,
    10014            ZOLOTAREV v. SAN FRANCISCO
    Inc., 
    127 S. Ct. 2162
    (2007). In this circuit, we have similarly
    emphasized the plaintiff’s awareness of the adverse employ-
    ment action as critical to the accrual analysis. See 
    Olsen, 363 F.3d at 927
    (section 1983 claim accrued on date when plain-
    tiff received letter notifying her that medical board was deny-
    ing her license reinstatement).
    [4] In addition, this view also seems analogous to cases in
    this circuit under the Federal Tort Claims Act (“FTCA”). For
    example, we have held that an FTCA claim accrues when the
    plaintiff knew or in the exercise of reasonable diligence
    should have known of the injury and the cause of that injury,
    but is not deferred until the plaintiff has evidence of fault.
    Davis v. United States, 
    642 F.2d 328
    , 331 (9th Cir. 1981) (cit-
    ing United States v. Kubrick, 
    444 U.S. 111
    (1979)). Thus, in
    Davis, we determined that the statute of limitations accrued
    when plaintiff knew he had been injured and that the likely
    cause was the Sabin vaccine; however, accrual was not further
    deferred until plaintiff had reason to suspect governmental
    negligence. 
    Id. at 331.
    We noted that once a plaintiff knows
    that harm has been done to him, he must “determine within
    the period of limitations whether to sue or not, which is pre-
    cisely the judgment that other tort claimants must make.” 
    Id. (internal quotation
    marks omitted).
    To counter this wealth of authority, plaintiffs point to lan-
    guage in Aronsen v. Crown Zellerbach, 
    662 F.2d 584
    , 593
    (9th Cir. 1981), in which we stated that in ADEA suits, the
    limitations period is activated once “the employee knows or
    should know that an unlawful employment practice has been
    committed.” In the context of the case, however, the clear
    focus of this sentence is on when plaintiff received notice of
    his termination—on the date the termination was informally
    communicated to him, or when he was officially terminated
    and his paychecks ceased nearly a year later. 
    Id. at 585-86.
    We went on to note in passing that receipt of “written notice
    of termination would clearly shorten the inquiry concerning
    the employee’s knowledge of termination date (though not
    ZOLOTAREV v. SAN FRANCISCO               10015
    necessarily knowledge of an unlawful employment practice).”
    
    Id. at 593-94.
    We did not decide the issue presented in this
    case, however, because we remanded the case for further pro-
    ceedings in light of the factual debate about when Aronsen
    actually knew of his termination. 
    Id. at 594.
    Plaintiffs also attempt to rely on language in Morales v.
    City of Los Angeles, in which we quoted a Second Circuit
    case to say that a “claim accrues when the alleged conduct has
    caused the claimant harm and the claimant knows or has rea-
    son to know of the allegedly impermissible conduct and the
    resulting 
    harm.” 214 F.3d at 1154
    (quoting Veal v. Geraci, 
    23 F.3d 722
    , 724 (2d Cir. 1994)). However, the holding of Mora-
    les (and Veal for that matter) was limited to the finality of the
    harm; we concluded that the plaintiffs had been injured when
    they lost their lawsuits, not when the losses were subsequently
    upheld on appeal. See 
    id. Again, we
    had no occasion to con-
    sider or decide the question we now face.
    [5] These stray remarks in cases that did not actually con-
    front the issue before us do not compel us to disagree with our
    sister circuits that a claim accrues under federal law when the
    plaintiff knows or has reason to know of the actual injury.
    See, e.g., Inlandboatmens Union of Pac. v. Dutra Group, 
    279 F.3d 1075
    , 1081 (9th Cir. 2002) (later panel not bound by tan-
    gential remark made in earlier case). In this case, as the dis-
    trict 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). Cf. Grimes v. City
    and County of San Francisco, 
    951 F.2d 236
    , 239 (9th Cir.
    1991) (termination is discrete act that triggers running of stat-
    ute of limitations); see also 
    Morgan, 536 U.S. at 114
    (“Discrete acts such as . . . refusal to hire are easy to identi-
    fy.”). At this point, the plaintiffs knew they had been injured
    and by whom, see 
    Kubrick, 444 U.S. at 113
    , even if at that
    point in time the plaintiffs did not know of the legal injury,
    10016                ZOLOTAREV v. SAN FRANCISCO
    i.e., that there was an allegedly discriminatory motive under-
    lying the failure to hire.4
    II.   Equitable Tolling/Equitable Estoppel
    Notwithstanding the foregoing, there are two doctrines
    which may apply to extend the limitations period or preclude
    a defendant from asserting the defense— equitable tolling and
    equitable estoppel. The federal version of these doctrines is
    concisely explained in Johnson v. Henderson, 
    314 F.3d 409
    (9th Cir. 2002). “Equitable tolling” focuses on “whether there
    was excusable delay by the plaintiff: If a reasonable plaintiff
    would not have known of the existence of a possible claim
    within the limitations period, then equitable tolling will serve
    to extend the statute of limitations for filing suit until the
    plaintiff can gather what information he needs.” 
    Id. at 414
    (quotation omitted). Equitable estoppel, on the other hand,
    focuses primarily on actions taken by the defendant to prevent
    a plaintiff from filing suit, sometimes referred to as “fraudu-
    lent concealment.” 
    Id. (citing Cada
    v. Baxter Healthcare
    Corp. 
    920 F.2d 446
    , 450-51 (7th Cir. 1990)).
    The plaintiffs in this case have expressly disavowed any
    reliance on equitable tolling. We therefore leave for another
    day the consideration of what circumstances would justify
    equitable tolling of the statute of limitations in this type of case.5
    4
    We note that various other circuits have also considered whether a rea-
    sonable plaintiff should have suspected discrimination and discovered the
    legal wrong within the limitations period as relevant to the issue of equita-
    ble tolling. See 
    Amini, 259 F.3d at 501
    ; 
    Thelen, 64 F.3d at 267-68
    and
    
    Dring, 58 F.3d at 1328-29
    . As discussed in Section II below, we are not
    called upon to decide this issue today.
    5
    The plaintiffs’ position seems driven by California’s equitable tolling
    principles. We note, however, that California tolling law only applies to
    the extent it is not inconsistent with federal law. Azer v. Connell, 
    306 F.3d 930
    , 936 (9th Cir. 2002). The plaintiffs do not argue that California’s
    requirements are inconsistent with federal equitable tolling principles, and
    we decline to sua sponte reach issues which have not been raised.
    ZOLOTAREV v. SAN FRANCISCO               10017
    However, they do argue that Defendants should be equitably
    estopped from asserting a statute of limitations defense
    because, they contend, the Defendants’ misrepresentations
    about requiring written verification of qualifying experience
    concealed that they were hiring unqualified Asian and Fili-
    pino applicants instead.
    Under California law, equitable estoppel requires that:
    (1) the party to be estopped must be apprised of the
    facts; (2) that party must intend that his or her con-
    duct be acted on, or must so act that the party assert-
    ing the estoppel had a right to believe it was so
    intended; (3) the party asserting the estoppel must be
    ignorant of the true state of facts; and (4) the party
    asserting the estoppel must reasonably rely on the
    conduct to his or her injury.
    Honig v. San Francisco Planning Dep’t, 
    127 Cal. App. 4th 520
    , 529 (2005). California equitable estoppel is thus similar
    to and not inconsistent with federal common law, as both
    focus on actions taken by the defendant which prevent the
    plaintiff from filing on time. See Santa 
    Maria, 202 F.3d at 1176
    .
    [6] 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 con-
    duct by the defendant “above and beyond the wrongdoing
    upon which the plaintiff’s claim is filed, to prevent the plain-
    tiff from suing in time.” Guerrero v. Gates, 
    442 F.3d 697
    , 706
    (9th Cir. 2006) (quoting Santa 
    Maria, 202 F.3d at 1176
    -77)
    (emphasis added).
    The Seventh Circuit persuasively explains why this rule
    must be the case:
    10018                ZOLOTAREV v. SAN FRANCISCO
    If [defendant] had told [plaintiff] that it would not
    plead the statute of limitations as a defense to any
    suit for age discrimination that he might bring, this
    would be a case for equitable estoppel; so also if
    [defendant] had presented [plaintiff] with forged
    documents purporting to negate any basis for sup-
    posing that [plaintiff’s] termination was related to
    his age. [Plaintiff] tries to bring himself within the
    doctrine by contending that [stated reason for termi-
    nation] was a ruse to conceal the plan to fire him
    because of his age. This merges the substantive
    wrong with the tolling doctrine . . . . It implies that
    a defendant is guilty of fraudulent concealment
    unless it tells the plaintiff, “We’re firing you because
    of your age.” It would eliminate the statute of limita-
    tions . . . .
    
    Cada, 920 F.2d at 451
    .
    [7] The plaintiffs in this case make a similar attempt to cir-
    cumvent the requirements of equitable estoppel. They do not
    point to any misrepresentation by the Defendants that con-
    cealed the composition of the applicant pool, the qualifica-
    tions 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 equita-
    ble estoppel.6
    CONCLUSION
    The district court correctly determined that the plaintiffs’
    claims accrued at the time they received notice they would not
    be hired or, in the case of plaintiffs Zolotarev and Hall, when
    a reasonable person would have realized he had not been
    6
    The Zolotarev plaintiffs also argue that, if their claims were timely, the
    district court abused its discretion by denying them leave to file a Third
    Amended Complaint. We deny this claim as moot.
    ZOLOTAREV v. SAN FRANCISCO               10019
    hired. The plaintiffs in this case have waived any claim for
    equitable tolling and the district court did not abuse its discre-
    tion in rejecting the plaintiffs’ claim for equitable estoppel, as
    the plaintiffs did not allege any fraudulent concealment or
    misrepresentation above and beyond the actual basis for the
    lawsuit.
    AFFIRMED.
    

Document Info

Docket Number: 06-16665

Filed Date: 8/6/2008

Precedential Status: Precedential

Modified Date: 10/14/2015

Authorities (29)

David Hulsey, and Gary Davis v. Kmart, Inc., a Michigan ... , 43 F.3d 555 ( 1994 )

Michael C. Veal v. Anthony Geraci, Detective, New York City ... , 23 F.3d 722 ( 1994 )

Dr. Janet I. Merrill v. Southern Methodist University , 806 F.2d 600 ( 1986 )

Saeid B. Amini v. Oberlin College , 259 F.3d 493 ( 2001 )

Sherry J. Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380 ( 1994 )

J.D. Hamilton v. 1st Source Bank , 928 F.2d 86 ( 1990 )

99-cal-daily-op-serv-2515-1999-daily-journal-dar-3282-christian , 174 F.3d 987 ( 1999 )

Morcos S. Azer Doctor's Medical Laboratory, Inc. v. ... , 306 F.3d 930 ( 2002 )

Arthur N. ARONSEN, Plaintiff-Appellant, v. CROWN ZELLERBACH,... , 662 F.2d 584 ( 1981 )

Betty Johnson v. William J. Henderson, U.S. Postmaster ... , 314 F.3d 409 ( 2002 )

Wendell Lyons Donald Tate Robert L. Claiborne Rosevelt ... , 307 F.3d 1092 ( 2002 )

Glynn Richard Davis v. United States , 642 F.2d 328 ( 1981 )

John A. Thelen v. Marc's Big Boy Corp., Marcus Corp., and ... , 64 F.3d 264 ( 1995 )

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jerome-grimes-v-city-and-county-of-san-francisco , 951 F.2d 236 ( 1991 )

lawrence-oconnor-margaret-oconnor-kathy-hecker-mary-jane-vroman-nicky , 311 F.3d 1139 ( 2002 )

lorna-a-olsen-v-idaho-state-board-of-medicine-idaho-state-board-of , 363 F.3d 916 ( 2004 )

cholla-ready-mix-inc-v-william-civish-blm-safford-arizona-field-office , 382 F.3d 969 ( 2004 )

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