Wha v. City

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 D.C. No.
behalf of class members,  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-WHACITY AND COUNTY OF SAN
FRANCISCO; ELSON HAO; JIM OPINION
WACHOB; ALAN DEGUZMAN; TOM
HIDAYAT,
Defendants-Appellees. 
10003

-- 1 of 16 --

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
10004 ZOLOTAREV v. SAN FRANCISCO

-- 2 of 16 --

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-
10006 ZOLOTAREV v. SAN FRANCISCO

-- 3 of 16 --

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.
10007 ZOLOTAREV v. SAN FRANCISCO

-- 4 of 16 --

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
1The remaining plaintiffs dismissed their claims with prejudice.
10008 ZOLOTAREV v. SAN FRANCISCO

-- 5 of 16 --

—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
10009 ZOLOTAREV v. SAN FRANCISCO

-- 6 of 16 --

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
2Section 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).
10010 ZOLOTAREV v. SAN FRANCISCO

-- 7 of 16 --

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
3Although 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).
10011 ZOLOTAREV v. SAN FRANCISCO

-- 8 of 16 --

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
10012 ZOLOTAREV v. SAN FRANCISCO

-- 9 of 16 --

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.,
10013 ZOLOTAREV v. SAN FRANCISCO

-- 10 of 16 --

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
10014 ZOLOTAREV v. SAN FRANCISCO

-- 11 of 16 --

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,
10015 ZOLOTAREV v. SAN FRANCISCO

-- 12 of 16 --

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
4We 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.
5The 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.
10016 ZOLOTAREV v. SAN FRANCISCO

-- 13 of 16 --

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:
10017 ZOLOTAREV v. SAN FRANCISCO

-- 14 of 16 --

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
6The 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.
10018 ZOLOTAREV v. SAN FRANCISCO

-- 15 of 16 --

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.
10019 ZOLOTAREV v. SAN FRANCISCO

-- 16 of 16 --