Concurring and Dissenting.
I concur with the majority regarding the statute of limitations bar to Schneider’s federal claims. I dissent as to the state claims because it appears with the veriest clarity that those are also barred by the statute of limitations, even if they were otherwise viable.
The longest statute of limitations that could apply here is California’s one year statute for Fair Employment and Housing Act claims. See Cal. Gov’t Code § 12960. Schneider asserts that the county treated her badly, and that resulted in her being placed on leave on December 30, 1993. When that term expired, she was given another one year of leave with the right to return to work. And when that period expired, she was given still another one year of leave, starting March 14, 1995, under which she had no absolute right to return to work, but could obtain an open position upon giving notice. What did she do during that two year period? Nothing at all! She did not call, she did not write, she did not make contact; nothing. As a result, a termination letter finally issued on about July 3, 1996; it is without dispute that the letter issued virtually automatically when her two year period ran out. In fact, the employer actually delayed a few more months. Of course, all that letter terminated was her right to reapply for an opening and to be given preference if there was one. What one would consider her employment in the usual sense had ended much earlier; it ended at least by the time her first one year period ran out and she no longer had a right to return to the position she left.
It is beyond me how Schneider can assert that the ministerial act of issuing the final letter was an act of discrimination. If there was a discriminatory act in the process, it could not have been perpetrated any later than March 15, 1995, when she was sent the letter regarding reapplication rights, which expired by March 15, 1996. Again, Schneider had made no effort to return during that whole time.1
As I see it, California would not treat that two year period as some sort of continuing violation of her rights. Any real violation occurred long before. See Richards v. CH2M Hill, Inc., 26 Cal.4th 798, 823-24, 29 P.3d 175, 190, 111 Cal.Rptr.2d 87, 106 (2001). Similarly, at least until today, this court would not have found some sort of continuing violation. See Knox v. Davis, 260 F.3d 1009, 1013-14 (9th Cir.2001); Morgan v. Nat’l R.R. Passenger Corp., 232 F.3d 1008, 1014-16 (9th Cir.2000) cert. granted, — U.S. —, 121 S.Ct. 2547, 150 L.Ed.2d 715 (2001).
Schneider sat mute for two years, while the county patiently waited for her to signal that she was ready, willing and able to come back to work. When the inevitable closure letter issued, she rose up and asserted that it was the final instrument of discriminatory acts against her. I think not.
What else did Schneider do, however? Interestingly, she told the Social Security Administration that she was so disabled since September 3, 1993, that she was actually unable to perform any jobs which exist in significant numbers in the national *749economy. The Administration bought that, and awarded her benefits for a disability commencing on that date and continuing at least through March 25, 1999. In so doing, the ALJ held, based on the evidence she presented, that she “has the mental residual functional capacity to perform simple repetitive tasks, with limited exposure to the general public, co-workers, and supervisors, but not on a sustained basis.” That does not sound like someone who could do the supervisory work of a probation officer, or, for that matter, do probation intake work. One has to wonder just what a person as damaged as she claims to be could do in the stressful, intense world of a probation office. Yet, she says, the county was discriminating against her during that whole time because it had not given her a fitness examination, that she could have returned to work, and that the final discrimination came July of 1996, right in the middle of her social security incapacity.
I recognize that the Supreme Court has said that a person can take seemingly opposing positions that she can do no job in the economy, no matter how undemanding, but is still able to work at what might be a quite demanding job, if she had some sort of reasonable accommodation. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 802-03, 119 S.Ct. 1597, 1601-02, 143 L.Ed.2d 966 (1999). Still and all, “an ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier SSDI total disability claim. Rather, she must proffer a sufficient explanation.” Id. at 806, 119 S.Ct. at 1603. Has Schneider offered a sufficient explanation? No. She, actually, has offered none at all. She does continue to say that she could return to work, although two years passed without the slightest hint of an attempt to do so, but that is not an explanation, or at least not one that would warrant a reasonable juror to find in her favor. See id. at 807, 119 S.Ct. at 1604. I have no doubt that the California courts would so hold on the facts of this case.
At any rate, the evidence in this case demonstrates, almost beyond peradventure, that Schneider did not, and probably could not, attempt to return to the work environment of the probation office, a place where she, surely, would be exposed to at least co-workers and supervisors on a sustained basis. She was unready, unwilling, and unable to work. That, not patient waiting while discrimination went on, is why she did not file sooner. That, not discrimination, is why the final notice issued. The county should not have to face a lawsuit because it finally elided her name from its roles. In fine, the action is barred by the statute of limitations.
Thus, I respectfully dissent.
. I note that Schneider puts great stress on the fact that before the two year period even began she had indicated that she was ready to return, but a fitness for duty examination was then to have been scheduled, and was not. She suggests (if it were not so serious, one would think with tongue-in-cheek) that that historical incident meant she could sit idly and silently by while all of that time ran out and then claim discrimination. Those sounds of silence are exceedingly hollow.