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Filed 2/27/15 McEnroe v. AT&T Mobility Services CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

SARA MCENROE,

Plaintiff and Appellant,

v.

AT&T MOBILITY SERVICES LLC et al.,

Defendants and Respondents.

 A136272

 (Sonoma County

 Super. Ct. No. SCV-249116)

Sara McEnroe sued her former employer, AT&T Mobility Services LLC (AT&T), 

and Farooq Syed, an AT&T assistant manager under the Fair Employment and Housing 

Act, for gender harassment and failure to accommodate the disability caused by the 

harassment. Summary judgments were entered for defendants based on the statute of 

limitations. McEnroe contends that her suit was timely filed because the running of the 

statute of limitations was equitably tolled for the time it took for her union to assert a 

grievance on her behalf against AT&T. We hold that the grievance did not toll the statute 

for a sufficient period to save McEnroe’s suit from being untimely, and affirm the 

judgment for defendants.

I. BACKGROUND

A. McEnroe’s Employment and Termination

In November 2007, McEnroe went to work as a sales consultant for AT&T at a 

retail store in Santa Rosa. In April 2008, Farooq Syed became her supervisor. 

McEnroe’s complaint alleges that Syed made inappropriate sexual comments to her, said 

that he wanted to torture her and see her buried alive, and hit her in the face with papers 
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he was holding in his hand. As a result of his behavior, she suffered “anxiety attacks, 

emotional breakdowns and inability to sleep.” Despite her repeated requests, AT&T 

failed to reassign her or Syed to a different location, and failed to provide her a safe and 

hostility free work environment. 

McEnroe was off work on leave under AT&T’s disability benefits plan and the 

Family and Medical Leave Act from late September 2008 to late March 2009. She 

returned to work from March 31, 2009 to April 10, 2009. She was granted additional 

disability leave through May 17, 2009, and did not thereafter return to work. In July 

2009, McEnroe’s psychologist informed the claims administrator of AT&T’s disability 

benefits plan that McEnroe could return to work “ ‘but not in the same work environment 

with this assistant manager [Syed].’ ” Further disability benefits were denied, and AT&T 

terminated McEnroe’s employment in September 2009 for “job abandonment.”

B. Facts Relating to the Statute of Limitations

In August 2008, McEnroe’s union, the Communication Workers of America (the 

union) filed a grievance with AT&T over sexual harassment on her behalf. The 

collective bargaining agreement (CBA) between the union and AT&T provided for a 

three-step grievance procedure, followed by arbitration if requested by the union. The 

grievance was denied at step two on or before December 9, 2008. On that date, the union 

sent a letter to Thomas Conway, AT&T’s Lead Labor Relations Manager for the 

California region, who was responsible for addressing McEnroe’s grievance at step three. 

The letter requested a step-three meeting, but Conway did not receive the letter because it 

was sent to the wrong fax number.

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Under Article 7, Section 3 of the CBA, if the union was dissatisfied with the 

outcome of step two, it was required to appeal the grievance within 15 working days, in 

writing, to step three. Article 7, section 2 required that grievances be delivered by a 

 

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The union later filed another grievance over McEnroe’s termination. The 

termination grievance was denied at all three steps of the grievance process, and 

McEnroe takes the position that this grievance is “on hold” pending the outcome of this 

lawsuit, which does not include a cause of action for wrongful termination. 
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union representative to the designated company representative as provided in section 3. 

Article 7, section 8 provided: “Failure to submit or pursue a grievance under the 

conditions and within the time and manner stated in Section 2 above shall be construed to 

be a waiver by the employee and the union of the formal grievance.” Under article 9, 

sections 1 and 2, the union could pursue arbitration of a rejected grievance, but only as to 

“matters processed through all steps of the formal grievance procedure.” 

On April 14, 2009, McEnroe filed claims for discrimination with the Department 

of Fair Employment and Housing against AT&T and Syed, stating: “I have been forced 

to work in the presence of an employee who has created a hostile work environment with 

threats of violence and threats of a sexual nature. Despite requests for accommodations, 

my employer has not remedied the situation, and I am unable to fulfill my employment 

obligations because of the situation.” That same day, McEnroe was given a right-to-sue 

notice stating that civil actions against AT&T and Syed had to be filed within one year. 

On August 12, 2009, union representative Steven Estes sent Conway an email and 

asked to schedule a meeting on McEnroe’s grievance. Conway responded the next day: 

“[T]here is unfortunately a very long history of my repeated notification to your Local . . 

. of my correct contact information, my non-receipt of any step three grievances since late 

2007, and my repeated requests for reconciliation of grievances as shown in your records. 

. . . [¶] Regarding this specific step 3 grievance escalation for Ms. McEnroe, I have never 

received it to-date. Please fax it to me ASAP to my fax number below and I will review 

it. [¶] I need to be very clear with you up front that, because of the potentially large 

number of untimely grievances currently pending in your Local which I have never 

received, I cannot commit to hearing it in the formal grievance process as it is likely 

timed out at this point. However, I am willing to meet with you at least informally to 

review any pending grievances you may have, review them for timeliness and see what 

we can do with them—including this one on behalf of Ms. McEnroe.” After further 

messages setting a time and place for their meeting, Estes sent Conway an email on 

August 19 stating, “I have faxed a copy of the Sara McEnroe Step III letter and some of 

the other Step one notifications. I am aware that we will be discussing these outside of 
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the grievance process. Most of these are old issues and I am sure we will be able to close 

most of them out.” 

McEnroe testified in her deposition that she contacted Estes “a lot” about the 

status of her harassment grievance. She said Estes “just let me know of meetings that he 

was having with human resources, I believe with Thomas Conway, and that things were 

moving very slow. That there were several grievances in process, and he was doing his 

best to work on mine. [¶] . . . [¶] . . . He let me know about meetings that he was having, 

and that things weren’t going anywhere; that they were stuck. There was no good; there 

was no bad; there was nothing, is what I was told.” 

On March 25, 2010, McEnroe sent Estes an email saying, “I still have not received 

an Email from you regarding what exactly was sent to arbitration and where we stand 

now. If you could please send that information over at your earliest convenience that 

would be greatly appreciated.” On March 29, Estes replied: “Both of your grievances, 

Termination and the Sexual Harassment were sent on 3/12/10 to our Paramount office for 

final review before referring to the National. When that happens, which should be by the 

end of the week, I will be hand delivering them to the National to be considered for 

arbitration. I will contact you when I have delivered them to the National office.” 

On April 16, 2010, a union representative sent a letter to AT&T “formally 

request[ing] that the time limits to request arbitration be protected for . . . [McEnroe’s

sexual harassment] grievance.” On April 17 and May 10, McEnroe sent Estes emails 

requesting updates on the status of her grievances. 

On May 25, 2010, Conway sent an email reply to the Union’s April 16 message, 

and addressed McEnroe’s harassment grievance: “Steve Estes acknowledged that the 

grievance was not timely (literally months late) and acknowledged that our meeting on 

that grievance was outside of the grievance process. I don’t know that it is a big deal for 

you as Ms. McEnroe’s termination grievance was timely and is also being escalated to 

time protect status anyway.” 

On May 27, 2010, Estes sent McEnroe an email stating “I have completed all the 

steps at my level per the contract. The national has your grievances and will contact you 
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with a status. I would let your attorney know that our grievance process has been 

completed.” 

On September 2, 2010, the union wrote McEnroe advising that her grievance had 

not been approved for arbitration and there would be “no further action on this 

grievance.” McEnroe declares that until she received this September 2, 2010 letter, she 

believed that her harassment grievance was being actively pursued. 

On February 8, 2011, McEnroe filed this lawsuit alleging a cause of action against 

AT&T and Syed for gender harassment, and causes of action against AT&T for failure to 

prevent harassment and discrimination, and failure to accommodate her anxiety and panic 

attacks. Later that month, the union advised AT&T that it was “withdrawing its intent to 

arbitrate” the harassment grievance. 

AT&T and Syed moved for summary judgment on statute of limitations and other 

grounds. The court granted the motions, concluding that McEnroe’s claims were timebarred. McEnroe has appealed from the ensuing judgment for defendants. 

II. DISCUSSION

“The rules of review [of a summary judgment] are well established. If no triable 

issue as to any material fact exists, the defendant is entitled to a judgment as a matter of 

law. [Citations.] In ruling on the motion, the court must view the evidence in the light 

most favorable to the opposing party. [Citation.] We review the record and the 

determination of the trial court de novo. [Citations.]” (Shin v. Ahn (2007) 42 Cal.4th 

482, 499.)

McEnroe contends that her lawsuit was timely filed under the doctrine of equitable 

tolling of statutes of limitation. “Broadly speaking, the doctrine applies ‘ “[w]hen an 

injured person has several legal remedies and, reasonably and in good faith, pursues 

one.” ’ ” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 

100.) While the first remedy is being pursued, the time to commence the second remedy 

is tolled if three requirements are met: “ ‘[1] timely notice, and [2] lack of prejudice, to 

the defendant, and [3] reasonable and good faith conduct on the part of the plaintiff.’ ” 

(Id. at p. 102.)
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Pursuit of an internal grievance procedure with an employer pursuant to a 

bargaining agreement can toll the statutes of limitations for claims related to the 

plaintiff’s employment. (McDonald v. Antelope Valley Community College Dist., supra,

45 Cal.4th at pp. 106–111; Marcario v. County of Orange (2007) 155 Cal.App.4th 397, 

407–409.) “The [equitable tolling] doctrine relieves the plaintiff claiming employment 

discrimination from the hardship of pursuing duplicate and possibly unnecessary 

procedures to enforce the same rights or obtain the same relief. [Citation.] [¶] The 

equitable tolling doctrine generally requires a showing that the plaintiff is seeking an 

alternate remedy in an established procedural context. [Citations.] Informal negotiations 

or discussions between an employer and employee do not toll a statute of limitations 

under the equitable tolling doctrine. [Citation.] . . . [¶] Moreover, the equitable tolling 

doctrine is inapplicable once the employee is on notice that his or her rights have been 

violated and that her alternate remedies will be unsuccessful. [Citation.]” (Acuna v. San 

Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1416–1417 (Acuna).)

Under Government Code section 12965, subdivision (b), McEnroe had until April, 

13, 2010, within one year after receiving the right-to-sue notice, to commence this case. 

(Downs v. Department of Water & Power (1997) 58 Cal.App.4th 1093, 1099.) She did 

not file her complaint until February 8, 2011. Defendants argue that the statute of 

limitations was never tolled because the grievance ended in December 2008 when it was 

not advanced beyond step two, before the right-to-sue letter was issued. They also argue

that any possible tolling ended at the latest on August 19, 2009, more than a year before 

the complaint was filed, once Estes was informed that the union had not given proper 

notice at step three, and acknowledged that discussion of the grievance would be “outside 

the grievance process.” 

McEnroe argues that the one-year deadline was tolled until September 2, 2010, 

when she was informed by the union that there would be no further action on her 

grievance, or at least until May 27, 2010, when Estes advised her to tell her counsel that 

the grievance process was completed “at my level,” and that “[t]he national” now had her 

grievances. In either event, she submits that she acted reasonably and in good faith for 
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purposes of the equitable tolling doctrine by suing within one year after the tolling ended.

She argues further that the case was “unsuitable for summary judgment” because “the 

evidence raised and argued by the parties permitted conflicting inferences regarding what 

information [she] had and when and the reasonableness of her belief that the [grievance] 

was still active until September 2010. 

However, what McEnroe was told by her union representative is largely 

immaterial because knowledge of the grievance possessed by her union, as her agent in 

the matter, is imputed to McEnroe. This is not, as McEnroe protests, a “hypertechnical 

limitation” on the doctrine of equitable tolling. Rather it is a black letter principle of the 

law of agency. “For purposes of determining a principal’s legal relations with a third 

party, notice of a fact that an agent knows or has reason to know is imputed to the 

principal if knowledge of the fact is material to the agent’s duties to the principal . . . .” 

(Rest.3d Agency, § 5.03; id. at com. b, pp. 360 [“the agents’ knowledge is imputed to the 

principal as a matter of basic agency law”]; 361 [“[i]mputation charges a principal with 

the legal consequences of having notice of a material fact, whether or not such fact would 

be useful and welcome”].)

The union learned on August 13, 2009, that McEnroe’s grievance had not been 

advanced beyond step two, and acknowledged to AT&T on August 19, 2009, that further 

discussion of it would be “outside the grievance process.” Equitable tolling of the time to

sue thus ended no later than August 19, 2009, when the Union, and McEnroe through the 

Union’s knowledge, was “on notice . . . that her alternate remed[y] [would] be 

unsuccessful.” (Acuna, supra, 217 Cal.App.4th at p. 1417.) McEnroe therefore had until 

August 18, 2010, to file her complaint. Since her complaint was not filed until February 

8, 2011, the suit was correctly dismissed as untimely.2

 

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In view of this conclusion, we need not reach any of the other grounds asserted by 

defendants for summary judgment in their favor, or pass upon the trial court’s reasons for 

finding the case time-barred (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 346 [a 

correct decision is affirmed “regardless or the correctness of the grounds on which the 

court reached its conclusion”]). 
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This conclusion would not change even were we to consider McEnroe personally 

diligent in following up on the status of her grievance. Her case is no different from

others that have been dismissed where negligence of counsel caused the untimely filing 

of a complaint. “Plaintiffs have cited no cases, and we have found none, holding that 

delay due to attorney neglect qualifies as ‘reasonable and good faith conduct on the part 

of the plaintiff’ within the meaning of the equitable tolling doctrine. [Citation.] Indeed, 

the opposite is true. [Citations.]” (Bonifield v. County of Nevada (2001) 94 Cal.App.4th 

298, 306; disapproved on another ground in City of Los Angeles v. County of Kern (2014) 

59 Cal.4th 618, 634.) McEnroe observes that her union representative is not an attorney, 

but that distinction is immaterial. McEnroe, not defendants, must bear the consequences 

of her representative’s dilatory and apparently misleading advice about the grievance. 

(See Gutierrez v. Mofid (1985) 39 Cal.3d 892, 900 [“for purposes of the statute of 

limitations, the risk that discouraging legal advice will lead to loss of a cause of action 

must fall upon the plaintiff who obtains that advice, rather than upon a wholly uninvolved 

defendant”].) Although the union was suggesting to McEnroe in March and May of 2010 

that her grievances were being referred to “national” for arbitration, no evidence has been 

cited that the grievances were then arbitrable at any level.

Finally, nothing that transpired after August 19, 2009, further tolled the statute of 

limitations. Conway’s offer to Estes at that time to discuss the grievances of McEnroe 

and others “at least informally” to “review them for timeliness and see what we can do 

about them” did not toll the statute. (Acuna, supra, 217 Cal.App.4th at p. 1416 [no 

tolling by informal discussions between an employer and employee].) Nor was the 

statute tolled, under the circumstances here, by the union’s belated April 16, 2010 request 

to AT&T to “protect[]” the “time limits” for requesting arbitration of the grievance. That 

request was promptly denied, and there is no evidence of a course of dealing between 

AT&T and the union that would have given the union any reasonable cause to believe 

that request would be granted. (See Venci v. International Union of Operating 

Engineers, Local 18 (6th Cir. 1998) 137 F.3d 420, 426 [union breached duty of fair 

representation owed to member by untimely request for arbitration of grievance, and no 
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“prior course of dealing reasonably indicated that the employer would accept a late 

filing”]; Dutrisac v. Caterpillar Tractor Co. (9th Cir. 1983) 749 F.2d 1270, 1272, 1273, 

fn. 1 [duty of fair representation breached by untimely request for arbitration where there 

was no evidence that union relied on any “past practice of loose enforcement of the 

contractual time limits”].)

III. DISPOSITION

The judgment is affirmed.

_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Pollak, J.