Tolbert v. City and County of San Francisco

Background

Kim E. Tolbert sued the City and County of San Francisco, the San Francisco Department of Public Health, and Barbara Garcia. She alleged that she was discriminated against because of her race and sex, harassed, retaliated against, and illegally terminated from her position as a Senior Account Clerk while on disability leave. The complaint alleged that the termination occurred in August 2017 and that Tolbert had complained about misconduct and discrimination by Garcia.

Tolbert had previously sued the same defendants over the same general events. In that earlier action, Judge Donato dismissed the complaint without prejudice for failure to prosecute. Judge Donato later denied Tolbert’s request to set aside that dismissal, citing her failures to appear at hearings and settlement conferences, meet discovery obligations, and comply with court deadlines.

Tolbert filed the present action on March 7, 2022, acting without a lawyer. Although the caption page listed thirteen causes of action, the body of the complaint asserted five: two claims under Title VII of the Civil Rights Act, a retaliation claim under California Labor Code section 1102.5, a claim under 42 U.S.C. section 1981, and a claim under the California Fair Employment and Housing Act. The defendants moved to dismiss, arguing that the claims were barred by the statutes of limitations.

Court’s Analysis

The court treated the motion as one under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not state a legally sufficient claim. The court concluded that all of Tolbert’s claims were untimely.

For the Title VII claims, the court explained that a claimant generally must sue within 90 days after receiving a right-to-sue letter from the Equal Employment Opportunity Commission. The complaint referred to the same charge used in the earlier action, and the earlier complaint stated that Tolbert received a right-to-sue letter on November 19, 2015. The court therefore found the first and third causes of action untimely.

For the Fair Employment and Housing Act claim, the complaint alleged that Tolbert received a right-to-sue notice on November 17, 2017. Because she filed this action about four and a half years later, the court found the fifth cause of action time-barred.

The court held that the Labor Code section 1102.5 claim was untimely because the claim had to be brought within three years, while Tolbert filed about four and a half years after her August 7, 2017 termination. The court also found the section 1981 claim untimely under the applicable three- or four-year limitations periods.

The court rejected Tolbert’s argument that the COVID-19 pandemic justified equitable tolling, which is a possible extension of a filing deadline in certain circumstances. Relying in part on the earlier ruling denying her request to set aside the prior dismissal, the court concluded that Tolbert had not shown the required diligence in preserving her claims. The court also stated that filing an action that was later dismissed without prejudice did not toll the limitations periods because the original complaint is treated as if it never existed.

Disposition

The court found that the claims were clearly barred by the statutes of limitations and that amendment would be futile. Judge Susan Illston therefore granted defendants’ motion to dismiss the complaint without leave to amend.