1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

SARA MC ENROE, 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 a nd 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 eq uitably 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 defenda nts.
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 m ade inappropriate sexual comments to her, said
that he wanted to torture her and see her buried alive, and hit her in the face with papers2

he was holding in his hand. As a result of his behavior, she suffered “anxiety attacks,
emotional breakdowns and ina bility 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 Se ptember 2008 to late March 2009 . She returned to work from March 31, 2009 to April 10, 2009. She was granted additional
disabi lity leave through May 17, 2009, and did not there after return to work. In July 2009, McEnroe’s psychologist informed the claims administrator of AT&T’s disab ility benefits plan that McEnroe could return to work “ ‘ but not in the same work environment with this assistant manager [Syed]. ’ ” Further disab ility 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 Com munication Workers of America (the

u nion) filed a grie vance with AT&T over sexual harassment on her behalf . The collective bargaining agreement (CBA) bet ween the u nion and AT &T provided for a
three

- step grievance procedure , followed by arbitration if requested by the u nion. The grievance was denied at step two on or before December 9, 2008 . On that date, the u nion
sent a letter to Thomas Conway, AT&T’s Lead Labor Relations Manager for th e California region, who was responsible for addressing McEnroe’s grievance at step three. The letter reques ted a step

- three meeting, but Conway did not receive the letter because it was sent to the wrong fax number

. 1
Under Article 7 , Section 3 of the CBA, if the u nion was dissatisfied with the
outcome of step two, it was required to appeal the grievance within 15 workin g days , in writing, to step three. Article 7, s ection 2 required that grievances be delivered by a

1 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, whic h does not include a cause of action for wrongful termination.3

union representative to the designated company representative as provided in s e ction 3. Article 7, s ection 8 provided: “Failure to submit or pursue a grie vance under the
conditions and within the time and manner state d in Section 2 above shall be construed to
be a waiver by the employee and the u nion of the formal grievance.” Under article 9,

s ections 1 and 2, the u nion could pursue arbitration of a reject ed 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 w ho 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 fulf ill 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, u nion 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 you r Local . . . of my correct contact information, my n on

- receipt of any ste p three grievances since late 2007, and my repeated requests for reconciliation of grievances a s shown in your records. . . . [¶] Regarding this specific step 3 grievance escalation for Ms. McEnroe, I have never
received it to

- date. Pleas e 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 grievance s currently pending in your Local which I have never received, I cannot commit to hearing i t 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 Ste p one notifications. I a m aware that we will be discussing these outside of4

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 he r harassment grievance. She said Estes “just let me know of meeting s 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 meeting s 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 s ent Estes an email saying, “I still have not received an Email from you regarding what exactly was sent t o 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 you r 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 u nion rep resentative 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 1 6 message , and addressed McEnroe’s hara ssment 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 te rmination 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 you r grievances and will cont act you5

with a status. I would let your attorney know that our grievance process has been completed.” On September 2, 2010, the u nion wrote McEnroe advising that her grievance had not been approved for arbitration and there would be “no further action o n this grievance.” McEnroe decl ares that until she received this September 2, 2010 letter, she
believ ed that her harassment grievance was being actively pursued.
O n February 8, 2011, McEnroe filed this law suit 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 u nion 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 time

barred. 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 la wsuit 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 a nd in good faith, pursues
one.” ’ ” ( McDonald v. Ante lope 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.)6

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 plainti ff’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
discr imination 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
alter nate 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 ha ve been
violated and that her alternate remedies will be unsuccessful. [Citation.]” ( Acuna v. San Diego Gas & Electric Co. (2 013) 217 Cal.App.4th 1402, 1416

– 1417 ( A cuna ) .)
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. Th ey 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 u nion had not given proper notice at step three, and acknowledged that discussion of the griev ance would be “outside the grievance process.”
McEnroe a rgues that the one

- year deadl ine was tolled unti l September 2 , 2010, when she was informed by the u nion that there would be no further action on her grievanc e, or at least until May 27 , 2010, when E stes 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 for7

purposes of the equitable tolling d octrine by s u ing 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 inference s regarding what
information [she] had a nd 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 u nion, as her ag ent in the matter, is imputed to McEnroe

. This is not, as McEnroe protests, a “hypertechnical
limitation” on th e doctrine of equitable tolling. Rather it is a black letter principle of the law of agency. “ F or purposes of determining a principal’s legal relations with a third party, notice of a fact that an agent know s 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, p p . 36 0 [“the agents’ knowledge is imputed to the principal as a matter of basic agency law”]; 361 [“[i]mputation charges a principal wi th the legal consequences of having notice of a material fact, whether or not such fact would be useful and welcome” ] .)
The u nion lear ned on August 13, 2009, that McEnroe’s gri evance had not been advanced beyond step two, and acknowledged to AT&T on August 19, 2009, that further
discussion of it would be “ outs ide 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, t o file her complaint. Since her complaint was not filed until February 8, 2011, the suit was correctly dismissed as untimely. 2

2 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”]).8

This con clusion 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 quali fies as ‘reasonable and good faith condu ct 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 ; disapp roved on another ground in City of Los Angeles v. County of Kern (2014) 59 Cal.4th 618, 634 .) McE nroe observes that her u nion 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 act ion must fall upon the plaintiff who obtains that advice, rather than upon a wholly uninvolved defendant”].) Although the u nion was suggesting to McEnroe in March and May of 2010 that her grievances were being referred to “n ational” for arbitration, no ev idence has been
cited that the grievances were then arbitrable at any level

. F inally
, 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 u nion’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 ther e is no evidence of a course of dealing be tween AT&T and the union that would have given the u nion any reaso nable 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

repre sentation owed to member by untimely request for arbitration of grievance, and no9

“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. DI SPOSITION The judgment is affirmed.

_________________________ Siggins, J.

We concur:

_________________________ McGuiness, P.J.

_________________________ Pollak, J.