Unpublished Disposition, 914 F.2d 262 (9th Cir. 1988)

MEMORANDUM^*

Plaintiff Vyonne McDonnell appeals a directed verdict in favor of Washington Supreme Court Justice Fred Dore on a claim brought pursuant to 42 U.S.C. § 1983. McDonnell also appeals a summary judgment in favor of Justice Dore on a pendent age discrimination claim. Having considered McDonnell's various challenges to the district court's decisions, we affirm in part, reverse in part, and remand.

* The district court granted a directed verdict to Justice Dore on McDonnell's section 1983 claim after finding that the statute of limitations barred the claim. There is no dispute here that the section 1983 claim accrued, and the limitations period began to run, when McDonnell received notice of her termination. See Chardon v. Fernandez, 454 U.S. 6, 8 (1981). The issue is whether McDonnell's testimony alone is conclusive as to when she received notice. McDonnell argues that the district court erred in directing a verdict solely on the basis of her testimony because a reasonable jury could have concluded "that a reasonably prudent person in [McDonnell's] shoes would have been confused and baffled regarding her employment status up until the time she actually left employment." This argument fails.

McDonnell's federal employment discrimination claim accrued when she knew or should have known of the allegedly unlawful termination. See Aronsen v. Crown Zellerbach, 662 F.2d 584, 593 (9th Cir. 1981), cert. denied, 459 U.S. 1200 (1983). McDonnell testified that she knew for certain on May 29, 1985--the day Justice Dore informed her that June 30 would be her last day--that she was "out of a job." Consequently, there was no need to allow the jury to consider evidence of what a reasonable person would believe under the circumstances. Given McDonnell's testimony, no reasonable juror could have concluded that McDonnell did not know that she had received notice on May 29, 1985. Thus, her section 1983 claim accrued on that day.

The parties agree that the applicable statute of limitations is Washington Revised Code Sec. 4.16.080(2). This statute provides for a three year limitations period. Because McDonnell's section 1983 claim accrued on May 29, 1985, the three year period of limitations ran on May 29, 1988. McDonnell did not file her complaint until June 28, 1988. The directed verdict was therefore proper because the statute of limitations barred McDonnell's section 1983 claim.

II

McDonnell also argues that the doctrine of equitable estoppel tolled the limitations period on her section 1983 claim because Justice Dore allegedly made it ambiguous whether McDonnell had actually been terminated. Although McDonnell appears to have raised this contention below, it seems that the district court overlooked this issue in directing the verdict. Therefore, we consider de novo whether this contention is sufficiently meritorious to require remand. See Garrett v. City and County of San Francisco, 818 F.2d 1515, 1518 & n. 3 (9th Cir. 1987).

State statutes of limitations and their coordinate tolling rules ordinarily control in section 1983 actions. Board of Regents v. Tomanio, 446 U.S. 478, 484-86 (1980). Therefore, Washington's law of equitable estoppel controls McDonnell's argument here. See Donoghue v. Orange County, 848 F.2d 926, 930 (9th Cir. 1987). McDonnell argues that the equitable estoppel doctrine should toll the limitations period until the day that McDonnell finally left her job. McDonnell's last day on the job was June 30, 1985. Yet McDonnell did not file her lawsuit until June 28, 1988. The state of Washington has rejected an equitable estoppel argument made under similar circumstances. Specifically, in Central Heat, Inc. v. Daily Olympian, Inc., 74 Wash. 2d 126, 443 P.2d 544 (1968), the Washington Supreme Court rejected plaintiff's efforts to toll a three year statute of limitations because the plaintiff had waited two years and ten months from the time the estoppel expired until bringing suit. Id. at ----, 443 P.2d at 549-50. Similarly, in the present case, McDonnell's equitable estoppel argument fails because she waited more than two years and eleven months after the alleged estoppel had expired before filing suit. Accordingly, the district court's oversight in not addressing the equitable estoppel issue did not constitute reversible error.

III

McDonnell also contends that the district court erred in allowing Justice Dore to make inconsistent arguments. However, Federal Rule of Civil Procedure 8(e) (2) specifically permits a party to plead alternative and inconsistent defenses. See Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1374 (9th Cir. 1987). McDonnell's argument in the district court was therefore specious. See id. On appeal, McDonnell attempts to convert her "inconsistent defenses" argument into an argument for application of the doctrine of judicial estoppel. Because McDonnell failed to raise this issue in the district court, we will not consider it for the first time on appeal. See Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir. 1986), cert. denied, 481 U.S. 1050 (1987). There is nothing in the record to indicate that we must invoke judicial estoppel to preserve the integrity of the judicial process.

IV

Finally, McDonnell argues that the district court erred in granting Justice Dore's motion for summary judgment on McDonnell's state law age discrimination claim. We agree.

Of the four elements composing Washington's prima facie case for age discrimination, the one relevant here is that the employee "was replaced by a younger person." See Grimwood v. University of Puget Sound, 110 Wash. 2d 355, ----, 753 P.2d 517, 520 (1988). The district court granted summary judgment to Justice Dore on the age discrimination claim because there was no genuine issue that McDonnell's replacement was also within the statutorily protected age group. The replacement was forty-three at the time of employment. Therefore, the district court concluded that under Brady v. Daily World, 105 Wash. 2d 770, ----, 718 P.2d 785, 788-89 (1986), Justice Dore was entitled to judgment as a matter of law.

However, Brady is not the Washington Supreme Court's last word on the meaning of "younger person," as that term is used in defining Washington's prima facie case for age discrimination. Two years after Brady, the court acknowledged the reasoning of the First Circuit:

[T]he element of replacement by a younger person or a person outside the protected age group is not absolute; rather, the proof required is that the employer "sought a replacement with qualifications similar to [the plaintiff's], thus demonstrating a continued need for the same services and skills."

Grimwood v. University of Puget Sound, 110 Wash. 2d 355, 753 P.2d 517, 521 (1988) (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1013 (1st Cir. 1979)). Thus, the fact that McDonnell's replacement was within the protected age class does not preclude the age discrimination claim. In light of Grimwood, the district court erred in granting summary judgment on this claim. Justice Dore was not entitled to judgment as a matter of law.

V

We affirm the district court's judgment in regard to McDonnell's section 1983 claim, and reverse the judgment in regard to her state law age discrimination claim. We remand the latter claim for further proceedings in the district court.¹  Each party is to bear his own costs.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

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except as provided by 9th Cir.R. 36-3.