FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES RICHARD STIEFEL, No. 09-55764
Plaintiff-Appellant,
D.C. No.
v.
3:08-cv-00037-
BECHTEL CORPORATION; BECHTEL H-WMC
CONSTRUCTION COMPANY,
OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted
May 5, 2010—Pasadena, California
Filed November 1, 2010
Before: John T. Noonan, Richard R. Clifton and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Clifton
17977
17980 STIEFEL v. BECHTEL CORP.
COUNSEL
Stephen Feliz Danz, Stephen Danz & Associates, Los Ange-
les, California; Marcus Jackson (argued), Jackson Employ-
ment Litigation, A.P.C., San Marcos, California, for plaintiff-
appellant James Richard Stiefel.
STIEFEL v. BECHTEL CORP. 17981
Thomas M. McInerney (argued), Ogletree, Deakins, Nash,
Smoak & Stewart, P.C., San Francisco, California, for
defendants-appellees Bechtel Corporation and Bechtel Con-
struction Company.
OPINION
CLIFTON, Circuit Judge:
James Richard Stiefel appeals from orders of the district
court dismissing his employment discrimination claims
against Bechtel Construction Company under the Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq. Stiefel con-
tends that Bechtel discriminated against him because of a dis-
abling work-related injury and failed to accommodate that
disability (“pre-termination claims”) and then laid him off to
retaliate against him for seeking accommodation
(“termination claims”). Stiefel also alleges that Bechtel there-
after discriminated and retaliated against him by refusing to
rehire him and accommodate his disability (“post-termination
claims”). The district court granted a motion to dismiss Stie-
fel’s pre-termination and termination claims and granted sum-
mary judgment in favor of Bechtel on Stiefel’s post-
termination claims.
The district court dismissed Stiefel’s pre-termination and
termination claims on the ground that Stiefel failed to file a
charge with the Equal Employment Opportunity Commission
(“EEOC”) within 30 days after receiving a right-to-sue letter
from the California Department of Fair Employment and
Housing (“DFEH”). See 42 U.S.C. § 2000e-5(e)(1); 29 C.F.R.
§ 1626.7(a). We reverse that order because Stiefel’s DFEH
charge was deemed filed with the EEOC pursuant to a “Work-
sharing Agreement” between the DFEH and the EEOC. See
Surrell v. Cal. Water Serv., 518 F.3d 1097, 1104 (9th Cir.
2008).
17982 STIEFEL v. BECHTEL CORP.
The district court granted summary judgment in favor of
Bechtel on Stiefel’s post-termination claims because it found
that Stiefel never gave Bechtel an opportunity to rehire him
by attending enough roll call meetings at the union hiring hall
to advance to the top of his union’s out-of-work list. We
affirm that order because Stiefel has failed to demonstrate
either that he applied to be rehired or that it would have been
futile to do so. See Holly D. v. Cal. Inst. of Tech., 339 F.3d
1158, 1179 n.24 (9th Cir. 2003).
I. Background
The ADA forbids discrimination in employment on the
basis of disability, requires employers to reasonably accom-
modate their employees’ disabilities, and prohibits retaliation
against those who oppose acts prohibited by the ADA. 42
U.S.C. §§ 12112(a), 12112(b)(5), 12203. Stiefel alleges that
Bechtel violated each of these directives in its actions leading
up to, relating to, and following his termination.
Stiefel was employed as an ironworker by Bechtel1 at the
San Onofre Nuclear Generating Station (“the power plant”)
from May 2004 until he was laid off on March 3, 2006. Five
weeks before he was laid off, Stiefel injured his left hand
while on the job. After a Bechtel doctor put his hand in a
splint and released him to work with no restrictions, Stiefel
complained to John Patterson, a supervisor for power plant
majority owner Southern California Edison, that his hand
injury prevented him from performing his normal duties.
Bechtel then arranged for Stiefel to see an orthopedist, who
wrapped Stiefel’s injured hand in a cast and cleared him for
light duty with no use of his left hand. According to Stiefel,
Bechtel assigned him to light duty for only two days begin-
ning February 14, 2006, and then began making him perform
1
Stiefel does not appeal the district court’s ruling that another named
defendant, Bechtel Corporation, was not Stiefel’s employer and therefore
not subject to his ADA claims.
STIEFEL v. BECHTEL CORP. 17983
tasks requiring both hands, attempting to make him quit. He
alleges that Bechtel subsequently laid him off in a “medical
reduction in force,” which would result in cost savings to
Bechtel under its workers’ compensation insurance plan. Stie-
fel further alleges that, since his termination, Bechtel has
passed him over for jobs because he is not “100% healed.”
A. Pre-Termination Claims
In his original complaint, Stiefel alleged that after his
injury, Bechtel discriminated against him and harassed him
because of his disability and failed “to take prompt corrective
action to address the discriminatory behavior.” Stiefel attests
that after he delivered to his supervisors a doctor’s note
describing his disability, they retaliated against him for seek-
ing accommodations by forcing him to perform work incom-
patible with his disability. He asserts that he was qualified for
many existing positions that were compatible with his disabil-
ity, but that Bechtel refused to reasonably accommodate his
disability by assigning him to those positions.
B. Termination Claims
Stiefel’s original complaint also characterizes Bechtel’s ter-
mination of his employment as illegal discrimination based on
his disability. Stiefel complains that Bechtel laid him off in
retaliation for having involved Patterson in securing medical
attention for his injury and for actively seeking accommoda-
tion for his disability immediately after his hand injury was
treated.
C. Post-Termination Claims
After the district court dismissed his termination and pre-
termination claims, Stiefel filed an amended complaint alleg-
ing that Bechtel violated the ADA in refusing to rehire him,
despite promises that certain Bechtel employees made at the
time of his termination to help him get back to work when his
17984 STIEFEL v. BECHTEL CORP.
cast came off. As evidence of Bechtel’s unwillingness to
rehire him, Stiefel points to statements by Bechtel employees
that he would not be allowed to return to work without a full
medical release. Stiefel acknowledges that Bechtel accommo-
dated other disabled employees but maintains that Bechtel has
discriminated against him because of his disability by refusing
to rehire him and accommodate his disability by offering him
a light-duty position. Stiefel further asserts that Bechtel’s
alleged refusal to rehire him was motivated out of a desire to
retaliate against him for having requested accommodation.
Pursuant to a collective bargaining agreement with Local
229 of the International Association of Bridge, Structural,
Ornamental, and Reinforcing Iron Workers Union (“the
Union”), of which Stiefel was a member, Bechtel hired iron-
workers based on referrals from the Union. The Union
referred workers to Bechtel from the top of its out-of-work
list. Workers moved to the top of the out-of-work list by
attending roll call meetings at the hiring hall.
After being laid off, Stiefel delayed adding his name to the
Union’s out-of-work list for three or four months. After join-
ing the list, he never advanced to the top because he missed
roll calls, which he said was because of his need for medical
treatment, including doctor appointments, surgery, and physi-
cal therapy. He also argues that attending roll calls “would
have been an exercise in futility” in light of statements made
by Bechtel employees that the company would not rehire Stie-
fel without a restriction-free medical release.
D. Procedural History
Stiefel first filed suit in state court on June 21, 2006, after
receiving a right-to-sue letter from the DFEH on May 8, 2006.
The right-to-sue letter informed Stiefel that he needed to file
a complaint with the EEOC within 30 days of receiving the
letter from DFEH if he wanted a federal right-to-sue notice.
Bechtel removed the case to federal district court, where Stie-
STIEFEL v. BECHTEL CORP. 17985
fel’s ADA claims were dismissed without prejudice because
he did not have a right-to-sue letter from the EEOC, due to
his failure to file a claim with the EEOC. Stiefel did not
appeal that decision but filed the current action in state court
on October 11, 2007, after filing new administrative charges
with the DFEH in December 2006, and with the EEOC on
March 16, 2007. Bechtel again removed the action to federal
court.
The district court dismissed Stiefel’s termination and pre-
termination claims because Stiefel had failed to file a charge
with the EEOC within 30 days of receiving notice of the
DFEH’s first termination of proceedings. Subsequently, the
district court granted summary judgment in Bechtel’s favor on
Stiefel’s post-termination claims because the court concluded
that Bechtel did not refuse to hire him, let alone do so in vio-
lation of the ADA, because the Union never referred Stiefel
to Bechtel for hiring. Stiefel timely appealed.
II. Discussion
“We review . . . de novo a district court’s dismissal and
grant of summary judgment.” Proctor v. Vishay Intertech-
nology Inc., 584 F.3d 1208, 1218 (9th Cir. 2009) (citation
omitted).
A. Dismissal of Pre-Termination and Termination Claims
[1] In dismissing Stiefel’s pre-termination and termination
claims, the district court ruled that he failed to timely file an
administrative charge with the EEOC. The ADA adopts the
“procedures set forth in [42 U.S.C.] §§ 2000e-4, 2000e-5,
2000e-6, 2000e-8, and 2000e-9” (corresponding to sections
705, 706, 707, 709, and 710 of the Civil Rights Act of 1964).
42 U.S.C. § 12117(a). Thus an ADA plaintiff is normally
bound by the requirement that
in a case of an unlawful employment practice with
respect to which the person aggrieved has initially
17986 STIEFEL v. BECHTEL CORP.
instituted proceedings with a State or local agency
. . . such charge shall be filed [with the EEOC] by
or on behalf of the person aggrieved within three
hundred days after the alleged unlawful employment
practice occurred, or within thirty days after receiv-
ing notice that the State or local agency has termi-
nated the proceedings under the State or local law,
whichever is earlier.
42 U.S.C. § 2000e-5(e)(1); see Walsh v. Nev. Dep’t of Human
Res., 471 F.3d 1033, 1038 (9th Cir. 2006); 29 C.F.R.
§ 1626.7(a).
[2] Stiefel filed a complaint with the DFEH in April 2006
and received a right-to-sue letter from the California agency
on May 8, 2006. The letter informed Stiefel that, if he desired
a federal right-to-sue notice, he must file a complaint with the
EEOC within 30 days of receiving the letter from DFEH.
Stiefel did not file a complaint with EEOC until some 312
days later, on March 16, 2007. In dismissing the suit on this
basis, the district court disregarded a right-to-sue letter that
Stiefel received from the EEOC sometime within 180 days2 of
filing his March 16, 2007 charge.3
[3] Stiefel’s claims should not have been dismissed on the
ground that he failed to timely file a charge with the EEOC.
Pursuant to “Worksharing Agreements” between the DFEH
and the EEOC in effect when Stiefel filed his DFEH charges,
the State agency was the agent of the EEOC “for the purpose
of receiving . . . charges.” Worksharing Agreement Between
2
The date on this 2007 EEOC right-to-sue letter is illegible.
3
The district court also disregarded a second complaint, similar to the
first, that Stiefel filed with the DFEH in December 2006, as well as a sec-
ond right-to-sue letter he received from the DFEH dated December 19,
2006. Although Stiefel states that he filed an EEOC complaint within 30
days of this second DFEH complaint, the only EEOC complaint submitted
to the district court is dated March 16, 2007, some 87 days later.
STIEFEL v. BECHTEL CORP. 17987
California Department of Fair Employment and Housing and
Equal Employment Opportunity Commission for Fiscal Year
2006 (“2006 Worksharing Agreement”), at ii; see 2007 Work-
sharing Agreement, at ii (same).4 Under such an agreement,
a charge filed with the DFEH “is deemed to have been
received by the EEOC on the same day.” Green v. Los Ange-
les County Superintendent of Schools, 883 F.2d 1472, 1476
(9th Cir. 1989), quoted in Surrell, 518 F.3d at 1104; see 29
C.F.R. § 1626.10(c) (“Charges received by one agency under
the [worksharing] agreement shall be deemed received by the
other agency for purposes of § 1626.7.”).
[4] The EEOC’s failure to issue a right-to-sue letter on a
dual-filed charge is no bar to a suit under the ADA. We
recently held in a Title VII case that “where, as here, a plain-
tiff is entitled to receive a right-to-sue letter from the EEOC,
a plaintiff may proceed absent such a letter, provided [ ]he has
received a right-to-sue letter from the appropriate state agen-
cy.” Surrell, 518 F.3d at 1105. The procedural analysis of
Surrell applies to the instant suit under the ADA. See Walsh,
471 F.3d at 1038.
[5] As with the DFEH charge in Surrell, by filing a charge
with the California department, Stiefel was entitled to a fed-
eral right-to-sue letter because of the Worksharing Agreement
between the state agency and the EEOC. As in the present
case, Surrell received a right-to-sue letter warning that “[i]f a
federal notice of Right-To-Sue is wanted, the [EEOC] must be
visited to file a complaint within 30 days of this [notice] or
within 300 days of the alleged discriminatory act, whichever
4
The agreement also provides that the DFEH “shall take all charges
alleging a violation of . . . the ADA where both the [DFEH] and EEOC
have mutual jurisdiction, or where EEOC only has jurisdiction, so long as
the allegations meet the minimum requirements of [the] Act.” 2006 Work-
sharing Agreement, at ii; see 2007 Worksharing Agreement, at ii (same).
Apparently the DFEH failed to fulfill its obligations under the Workshar-
ing Agreement to “make every effort to forward all dual filed charges to
the [EEOC] within two working days of receipt.” Id.
17988 STIEFEL v. BECHTEL CORP.
is earlier.” Surrell, 518 F.3d at 1104. Surrell never filed a sep-
arate charge with the EEOC nor received a right-to-sue letter
from that agency. Nevertheless, we held in Surrell that “once
a plaintiff is entitled to receive a right-to-sue letter (as Surrell
was once the EEOC did not timely act on her properly filed
charge), it makes no difference whether the plaintiff actually
obtained it.” Id. at 1105. The same is true for an ADA plain-
tiff.
[6] As such, we hold that when a plaintiff files a disability
discrimination complaint with a state agency acting, with
respect to ADA complaints, as an agent of the EEOC, and
receives a right-to-sue letter from the state agency, thereby
becoming entitled to an EEOC right-to-sue letter, the plaintiff
need not file a separate complaint with the EEOC nor receive
an EEOC right-to-sue letter in order to file suit. Stiefel
became entitled to an EEOC letter “once the EEOC did not
timely act on [his] properly filed charge,” Id. at 1105; that is,
on November 4, 2006—180 days after his DFEH charge was
deemed filed with the EEOC. 42 U.S.C. § 2000e-5(f)(1).
[7] After receiving an EEOC right-to-sue letter or becom-
ing eligible for one by the Commission’s inaction, a plaintiff
generally has 90 days to file suit. Id. “[T]he 90-day filing
period is a statute of limitations subject to equitable tolling in
appropriate circumstances.” Valenzuela v. Kraft, 801 F.2d
1170, 1174 (9th Cir. 1986). Stiefel’s 90-day window for filing
the present suit was tolled pending his first suit, until the dis-
trict court issued its final judgment on July 16, 2007. See
Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 349-54
(1983) (tolling the 90-day statute of limitations during the
pendency of a related class action that gave the employer
notice of the nature of the claim). Stiefel filed the current
action on October 11, 2007, fewer than 90 days after that
judgment. His suit was therefore timely, and it should not
have been dismissed.
STIEFEL v. BECHTEL CORP. 17989
B. Summary Judgment on Post-Termination Claims
The district court granted summary judgment on Stiefel’s
post-termination claims, reasoning that after Stiefel was laid
off, he failed to take the steps necessary to give Bechtel a
chance to rehire him. We agree.
Bechtel’s collective bargaining agreement with the Union
generally required that Bechtel hire ironworkers based on
referrals from the Union. Stiefel admitted that he did not
attend roll calls for several months after being laid off and
thereafter missed roll calls “many, many times” for personal
reasons. Because he remained at the bottom of the out-of-
work list, he was never referred to Bechtel through the normal
Union referral process and Bechtel never had a chance to hire
him.
Stiefel argues that attending the roll calls would have been
futile, citing statements by Bechtel employees that Bechtel
would not rehire Stiefel until he could obtain a medical
release with no work restrictions. Most of these statements
were inadmissible hearsay, as the speakers who made them
were not involved with or responsible for hiring decisions. Cf.
Fed. R. Evid. 801(d)(2)(D). The only apparent exceptions
were statements by John Fanto, manager of Bechtel’s safety
department, related by David Peabody, another ironworker
who had approached Fanto about rehiring Stiefel. According
to Peabody, Fanto stated that “it was Bechtel’s policy . . .
when someone was injured, not to rehire them until they had
a doctor’s release,” and that such a release must state “that
there are no restrictions,” because “there’s no light duty at
[the power plant].” Bechtel does not dispute that this evidence
is admissible as an admission of a party opponent. Under the
facts of this case, however, this evidence was not sufficient to
defeat Bechtel’s motion for summary judgment.
[8] We have held in the Title VII context that an employee
can prevail in an employment discrimination action without
17990 STIEFEL v. BECHTEL CORP.
applying for the job if he can show that he “was a potential
victim of unlawful discrimination” and that he “would have
applied for the job had it not been for those discriminatory
practices.” Gutowsky v. County of Placer, 108 F.3d 256, 260
(9th Cir. 1997) (quoting Int’l Bhd. of Teamsters v. United
States, 431 U.S. 324, 367-68 (1977)) (alteration omitted). In
such cases, a court may conduct a “subjective evaluation” into
whether applying would have been futile, Bouman v. Block,
940 F.2d 1211, 1222 (9th Cir. 1991), in which the plaintiff
must demonstrate a “reasonable belief” that the employer
“was so biased that resort to its procedures would have been
futile.” Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1179
(9th Cir. 2003). This futile gesture doctrine, born of our Title
VII jurisprudence, applies to ADA plaintiffs because “Con-
gress specifically intended that Teamsters’ ‘futile gesture’
reasoning be applied to ADA claims.” Pickern v. Holiday
Quality Foods, 293 F.3d 1133, 1136 (9th Cir. 2002) (citing H.
Rep. No. 101-485(II) at 82-83 (1990) (“The Committee
intends for this doctrine to apply to this title.”); S. Rep. No.
101-116 at 43 (1989)).
Nonetheless, Stiefel’s “futile gesture” argument fails
because it was not supported by his own sworn deposition tes-
timony. Stiefel testified that he was kept away from the hiring
hall by personal obligations and schedule conflicts. He con-
firmed this twice under direct questioning. He said nothing
about not attending the meetings because of a belief that it
would have been futile.
Moreover, Stiefel admitted that Bechtel accommodated the
disabilities of other employees. An employer may be liable
for discriminating against a single employee in spite of its
own generally followed anti-discrimination policy, but Stie-
fel’s knowledge of the company’s practice of accommodating
disabilities undercuts the reasonableness of his claimed belief
that it would have been futile to try to get rehired through the
Union referral process.
STIEFEL v. BECHTEL CORP. 17991
[9] Where a plaintiff does not identify other victims of the
discrimination he alleges and testifies only to logistical rea-
sons for his own decision not to seek rehiring, it cannot be
said that “an application would have been a useless act serv-
ing only to confirm [his] knowledge that the job he wanted
was unavailable to him.” Teamsters, 431 U.S. at 367. Stiefel
has not offered sufficient “facts that would support a reason-
able belief that [Bechtel] was so biased that resort to its [hir-
ing] procedures would have been futile.” Holly D., 339 F.3d
at 1179.
Stiefel points out that an addendum to the collective bar-
gaining agreement allows Bechtel to “request manpower from
the Union[ ] by identifying . . . the names of previously
employed individuals.” He argues that Bechtel should have
rehired him through this alternate channel, and that Bechtel
knew he wanted to be rehired because he submitted personal
history questionnaires.5 But Stiefel was not the only iron-
worker who wanted to be hired. The ironworkers who pre-
sented themselves for hiring by attending the roll calls wanted
to be hired, too. Stiefel does not explain why Bechtel was
required affirmatively to favor him by asking for him by name
even though he had not been referred by the Union in the
usual way.
The evidence indicates, moreover, that Bechtel did request
Stiefel by name from the Union on August 15, 2006, and that
Stiefel did not appear for employment in response to the
request. The district court cited what it described as “undis-
puted evidence” in the form of a requisition form sent by
Bechtel to the Union specifically requesting several ironwork-
ers by name, including Stiefel. Stiefel now argues that the
document was fabricated, but that was an argument that
should have been made to the district court. More to the point,
Stiefel himself testified that the Union’s business agent called
5
According to Stiefel, a personal history questionnaire initiates a back-
ground check necessary for employment with Bechtel.
17992 STIEFEL v. BECHTEL CORP.
him about a job at the power plant in August 2006. Although
he did not recall the agent mentioning the requisition from
Bechtel, that testimony, including the timing of that call, cor-
roborates the requisition form and supports the district court’s
conclusion, based on undisputed evidence, that Bechtel did
make a request for Stiefel by name.
Unfortunately, as Stiefel testified, the Union agent then told
him to “forget it” because Stiefel did not have a “hundred per-
cent” medical release. But the Union agent’s advice cannot be
attributed to Bechtel. Even if Stiefel did not appear for hiring
based on the agent’s perception that Bechtel required a “hun-
dred percent” release, that is not itself sufficient, in light of
other evidence described above, to persuade a reasonable jury
that Stiefel held a reasonable belief that Bechtel had such a
policy or would not have hired Stiefel and accommodated his
disability if Stiefel had in fact appeared.
III. Conclusion
[10] For the foregoing reasons we reverse the order dis-
missing Stiefel’s termination and pre-termination claims, we
affirm the order granting summary judgment on his post-
termination claims, and we remand for further proceedings
consistent with this opinion.
AFFIRMED in part, REVERSED in part, and
REMANDED.