NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 4 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDRA HOLMES, No. 17-35673
Plaintiff-Appellant, D.C. No. 3:16-cv-05317-BHS
v.
MEMORANDUM*
TACOMA PUBLIC SCHOOL DISTRICT
NO. 10; JOHN/JANE DOES 1-5,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted August 30, 2018**
Seattle, Washington
Before: McKEOWN, W. FLETCHER, and GOULD, Circuit Judges.
Sandra Holmes appeals the district court’s order granting summary judgment
in favor of Tacoma Public School District No. 10 (“the District”) in an action
asserting claims of wrongful termination and discrimination on the basis of her
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
race, disability, and age. Because the parties are familiar with the facts, we do not
repeat them here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not err in concluding that Holmes’ Title VII claims are
barred by her failure to exhaust her administrative remedies. A plaintiff alleging
employment discrimination must file a charge with the Equal Employment
Opportunity Commission (“EEOC”) within 300 days “after the alleged unlawful
employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1); Nat’l Passenger R.R.
Corp. v. Morgan, 536 U.S. 101, 104–05 (2002). Similarly, a plaintiff alleging
disability discrimination must file a charge with the EEOC within 300 days of the
alleged discriminatory act. 42 U.S.C. § 12117.
We agree with the EEOC that Holmes’ charge was untimely. Holmes’ filing
with the EEOC alleged that the discrimination took place from February 10, 2013
through February 7, 2014. She did not file her charge until October 5, 2015—well
over 300 days later. On appeal, Holmes alleges that her termination did not
become final until an administrative law judge upheld her termination in 2015, but
she cites no authority for this proposition, and did not include the administrative
law judge’s determination in her charge to the EEOC.
Holmes’ failure to timely file her charge to the EEOC is not necessarily
fatal. As the Supreme Court has held, the “time period for filing a charge is
subject to equitable doctrines such as tolling or estoppel.” Morgan, 536 U.S. at
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113. “Equitable tolling is, however, to be applied only sparingly.” Nelmida v.
Shelly Eurocars, Inc., 112 F.3d 380, 384 (9th Cir. 1997). For example, the
Supreme Court has permitted equitable tolling when “the statute of limitations was
not complied with because of defective pleadings, when a claimant was tricked by
an adversary into letting a deadline expire, and when the EEOC’s notice of the
statutory period was clearly inadequate.” Scholar v. Pac. Bell, 963 F.2d 264, 268
(9th Cir. 1992) (collecting cases). But “[c]ourts have been generally unforgiving
. . . when a late filing is due to claimant’s failure ‘to exercise due diligence in
preserving [her] legal rights.’” Id. (quoting Irwin v. Dep’t of Veterans Affairs, 498
U.S. 89, 96 (1990)).
Here, Holmes presented no evidence that she diligently pursued her rights
under the statute. As the district court noted, Holmes could have filed a claim with
the EEOC that would have been held in suspension until her union rights were
investigated. Holmes’ assertion that she was unable to file a charge with the
EEOC until October 2015 because the District instructed her not to discuss her
termination with anyone else while she was on paid administrative leave is belied
by Holmes’ own admission that she spoke to other employees about her case while
her union representative was investigating the matter on her behalf. For those
reasons, the district court properly held that Holmes is entitled to equitable tolling,
and did not err in granting summary judgment on Holmes’ federal discrimination
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claims because Holmes failed to timely file her charge with the EEOC.
Finally, the district court did not err in granting the District’s motion for
summary judgment with respect to Holmes’ claims under the Washington Law
Against Discrimination (“WLAD”) because Holmes failed to comply with
Washington’s notice claim statute, Wash. Rev. Code § 4.96.010(1). Holmes
contends that this statute only applies to common-law tort claims, not claims
created by statute. But Holmes cites no authority for this proposition, and in fact
Washington courts have held that similar notice claim statutes are applicable to
state statutory causes of action. See, e.g., Blair v. Wash. State Univ., 108 Wash. 2d
558, 576 (1987). Nor did Holmes’ notice with respect to her federal claims, by
filing a charge to the EEOC, satisfy notice requirements with respect to her state-
law claims under the WLAD. Accordingly, the district court did not err in granting
summary judgment in favor of the District on Holmes’ WLAD claims.
AFFIRMED.
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