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Garland's Digest
on employment discrimination law
online since 1997
 

 

Disclaimer: The case on which this summary is based may no longer be current law. Also, if the case was decided on summary judgment, the court recited the "facts" in the light most favorable to the non-movant, which may not be the true facts.

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Gutowsky v. County of Placer, 108 F.3d 256 (9th Cir. March 6, 1997)

Keywords: 42 U.S.C. Section 1983 (sex discrimination, statute of limitations, continuing violation theory)

Introduction: Yovana Gutowsky sued her former employer under 42 U.S.C. Section 1983 for failing to promote her. The district court granted Placer County's motion for summary judgment on the statute of limitations. The Ninth Circuit reverses.

Facts: Gutowsky worked for the Department of Public Works, Road Division, in a clerical position from 1982 until 1993.

She continually sought a position as an equipment operator. Male employees with lesser qualifications were promoted during her tenure. Male employees were also allowed to practice on the County equipment for their Class I commercial driver's license.

Gutowsky asked to use the County equipment, but was repeatedly rebuffed. Male employees were also allowed to obtain their Class I commercial driver's license on County time. Gutowsky was not.

No female had ever been hired as a full-time road maintenance worker. At least 67 females applied. No female had ever been hired as a full-time equipment operator.

In order to obtain a position with, or be promoted by, Placer County, a person was required to submit an application.

Gutowsky never did submit an application for road maintenance worker or equipment operator because she thought it would be futile. Finally, numerous discriminatory comments were made by Gutowsky's supervisors over the years.

Law:

1. The appropriate statute of limitations under California law for an action pursuant to 42 U.S.C. Section 1983 is one year.
2. Gutowsky's last day of employment was May 26, 1993. Gutowsky filed suit on May 24, 1994.
3. There is no evidence of a particular discriminatory act occurring within one year prior to suit being filed. However, Gutowsky argues that her suit is timely under a continuing violation theory.
4. The Ninth Circuit holds that the "continuing violation" doctrine that is recognized under Title VII is equally applicable to employment discrimination actions brought pursuant to 42 U.S.C. Section 1983.
5. To invoke the continuing violation doctrine, Gutowsky must show a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during that period.
6. The Ninth Circuit holds that the continuing violation theory applies because a trier of fact could find that the County's discrimination against women as equipment operators continued up to and including the last day that Gutowsky worked. Therefore, her suit was timely filed.
7. The failure to submit a job application is not fatal if the application would have been futile.
8. Therefore, on remand, the triable issues of fact are:
   1. whether the County's management personnel had a policy or custom barring the employment of women as road maintenance workers or equipment operators; and
   2. whether an application for a position as an equipment operator would have been futile.
   3. [Editor's Note: Remember that under 42 U.S.C. Section 1983 a governmental entity can only be held liable if the plaintiff can establish a "custom, policy or practice" that caused the employment discrimination. See, Monell v. Dep't of Social Servs., 436 U.S. 658 (1978).]
9. Click here to see actual case.