FILED
NOT FOR PUBLICATION APR 07 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAREN KRUSHWITZ, No. 12-17580
Plaintiff - Appellant, D.C. No. 3:11-cv-04676-LB
v.
MEMORANDUM*
UNIVERSITY OF CALIFORNIA,
at Berkeley,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding
Argued and Submitted March 17, 2015
San Francisco, California
Before: O’SCANNLAIN and CLIFTON, Circuit Judges, and ADELMAN, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.
Karen Krushwitz, a former graduate student and teaching assistant, appeals
from the district court’s grant of summary judgment in favor of her former
university, U.C. Berkeley. Krushwitz alleges that U.C. Berkeley discriminated
against her and failed to accommodate her disability, and brings claims under Title
VII, Titles I & II of the Americans with Disabilities Act (“ADA”), and Section 504
of the Rehabilitation Act.1 We affirm.
First, Krushwitz’s contention that the grant of summary judgment must be
reversed because the district court procedurally erred is not persuasive. It is true
that “[a] moving party without the ultimate burden of persuasion at trial . . . has
both the initial burden of production and the ultimate burden of persuasion on a
motion for summary judgment.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210
F.3d 1099, 1102 (9th Cir. 2000). A district court, however, has authority to request
supplemental briefing under Rule 56, and determining the relevant dates did not
require the district court to weigh evidence or assess credibility. Krushwitz,
moreover, did not object to providing additional information to the court.
Krushwitz’s employment discrimination claims are brought under Title VII
and Title I of the ADA. She did not file a timely discrimination charge with the
1
Although Krushwitz was pro se in the district court, she was ably
represented on appeal by a counsel appointed through the Ninth Circuit’s Pro Bono
Program; we thank counsel for his service.
2
EEOC, required as a precondition for filing suit under these provisions. 42 U.S.C.
§ 12117(a); 42 U.S.C. § 2000e–5(e)(1). Nor was there a triable issue of fact as to
whether Krushwitz’s disability equitably tolled the limitations periods. This is not
one of those “exceptional circumstances, such as institutionalization or adjudged
mental incompetence of the litigant,” under which equitable tolling is appropriate.
Grant v. McDonnell Douglas Corp., 163 F.3d 1136, 1138 (9th Cir. 1998); see also
Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1010 (9th Cir. 2011).
We turn next to the student discrimination claims, brought under Title II of
the ADA and Section 504 of the Rehabilitation Act. The district court correctly
determined and applied the relevant limitations period for the Title II claim. See
Sharkey v. O’Neal, __ F.3d __, 2015 WL 525488 (9th Cir. Feb. 10, 2015) (holding
that a three year limitations period applies). Even if we assume that a three year
limitations period applies to the Section 504 claim, Krushwitz’s claims are still
time-barred. We are not persuaded that the untimely EEOC filing tolled the statute
of limitations for the student claims. See Johnson v. Railway Express Agency, Inc.,
421 U.S. 454, 466 (1975).
AFFIRMED.
3