U.S. 9th Circuit Court of Appeals

STOLL v RUNYON

9717398

CYNTHIA STOLL,

97-17398

Plaintiff-Appellant,

D.C. No.

v.

CV-97-00680-LKK

MARVIN RUNYON,

OPINION

Defendant-Appellee.

 

 

Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, District Judge, Presiding

 

Argued and Submitted

December 9, 1998--San Francisco, California

 

Filed January 15, 1999

 

Before: Jerome Farris, Stephen Reinhardt, and

Michael Daly Hawkins, Circuit Judges.

 

Opinion by Judge Reinhardt

 

_________________________________________________________________

 

COUNSEL

 

Elaine W. Wallace, Oakland, California, for the plaintiff-

appellant.

 

Scott H. Park and Joseph E. Maloney, Assistant United States

Attorneys, Sacramento, California, for defendant-appellee

Marvin Runyon, Postmaster General.

 

_________________________________________________________________

 

OPINION

 

REINHARDT, Circuit Judge:

 

Cynthia Stoll, a single mother of three boys, went to work

at the Sacramento Post Office in March, 1984, as a letter-

sorting machine operator. She remained in that position for

six years, until June 22, 1990, when she literally fled the

workplace to escape the extreme sexual harassment she was

experiencing. Following her departure, Stoll filed a complaint

with the EEOC requesting back and front pay as well as attor-

neys' fees. An extensive hearing before an EEOC administra-

tive law judge ("ALJ") was completed in 1994. The gruesome

facts of this case, as found by the ALJ and admitted by the

Post Office, are briefly summarized below.

 

The ALJ found that Stoll "was subjected to persistent and

pervasive hostile environment sexual harassment from a blur

of men." Numerous male coworkers and supervisors asked

Stoll to perform oral sex on them, commented on her body,

shot rubber bands at her backside, asked her to wear lacy

black underwear for them, bumped and rubbed up against her

from behind, pressed their erect penises into her back while

she was sorting mail and unable to get away, followed her

into the women's bathroom, asked her to go on vacations,

"stalked her throughout the postal facility," and fondled her

body.

 

The ALJ found that much of the sexual harassment was

perpetrated by supervisors. Moreover, Stoll's immediate

supervisor, Victor Almendarez "fostered much of the sexual

harassment," because he "unreasonably intimidated" Stoll,

who was described by witnesses as fairly shy. The ALJ noted

the testimony of several witnesses that Almendarez seemed to

take sadistic pleasure in screaming at and otherwise torment-

ing Stoll because she was quiet and pretty, "to the extent that

she was afraid of him and could not approach him about the

sexual harassment she experienced." For example, on two

occasions, Almendarez refused Stoll's request to leave her

workstation to go to the ladies' room because she was men-

struating heavily. Instead, he forced her to remain at her

letter-sorting console and bleed all over herself. She then had

to go to the nurse's office covered in menstrual blood. The

ALJ found Almendarez's "unsympathetic attitude toward her

female health needs" particularly revolting and abusive.

 

Another supervisor, John Garrard, intervened on Stoll's

behalf with Almendarez and did other unsolicited "favors" for

Stoll and then demanded sexual services from her as a quid

pro quo. Garrard often approached Stoll in the workplace and

asked her if she "wanted something to suck on. " He also fre-

quently told her that he wanted to "fuck" her and asked her

if she "fucked as good as she looked." When Stoll declined

Garrard's advances, he raped her repeatedly. Although Stoll

was too frightened and ashamed to report the first rape to the

police, she did report the subsequent assaults, and Garrard

was eventually ordered to stay away from her.

 

Garrard, predictably, claimed that Stoll was his

"girlfriend." The ALJ found this assertion ludicrous, and con-

cluded that "there was absolutely no evidence presented to

indicate that the complainant and Garrard were romantically

involved at any time during complainant's employment." Wit-

nesses and coworkers testified that Garrard was "obsessed

with Stoll" but that she did not like him, did everything possi-

ble to avoid him, refused to socialize with him, and was visi-

bly afraid of him. The ALJ found that all of the advances and

assaults visited upon Stoll were totally unsolicited and that

she repeatedly and consistently made it clear that she had no

interest in any of her attackers. He further found that Stoll was

"by far the most compelling of any witness that has ever

appeared before me."

 

The working conditions not just for Stoll but for all women

at the Sacramento Post Office during that time period were

characterized by the ALJ as "a glaring situation no one should

have to endure." The terms and conditions of Stoll's employ-

ment were obviously negatively affected by the abusive atmo-

sphere in which she was forced to work, an environment the

ALJ concluded "was so intolerable that [Stoll ] was forced to

sever her employment relationship with the agency in June,

1990, and that she may never be able to work again, as a

result thereof."

 

The ALJ further found that Stoll, understandably, suffered

severe psychological damage as a result of her experiences.

Stoll's psychiatrist, Dr. Weber, testified that she might never

recover from the abuse and might never work again. A clini-

cal psychologist confirmed Dr. Weber's view. The ALJ found

that Stoll was "obviously scarred for life" by her work at the

Post Office, that her experience had "a profound detrimental

effect on her health and well being" and that she might never

be able to return to work.

 

Stoll suffers from severe major depression and severe gen-

eralized anxiety disorder, as well as somatic form pain disor-

der. She is unable to attend to paperwork concerning the case

due to her anxiety disorder, and cannot open her mail without

experiencing a panic attack. She cannot concentrate well

enough to read. She is currently considered totally psychiatri-

cally disabled and receives federal occupational benefits. By

the time of the administrative hearing in April, 1994, Stoll had

attempted suicide four times, most recently just days before

the hearing was set to begin, by taking 70 Valiums, Tylenol,

and other anti-depressants. Stoll's anxiety, according to Dr.

Weber, is particularly acute when an issue arises involving

her experience at the Post Office and the subsequent proceed-

ings, and when she is required to have any form of contact,

even non-physical, with males, including, tragically, her own

sons. Dr. Weber testified that Stoll is so anxious around men

that she refused to sit in his office during psychiatric treat-

ment, and instead stood in the corner as far from him as possi-

ble.

 

At a deposition taken in the instant lawsuit, Dr. Weber

stated that because of her anxiety and fear of anything to do

with the Post Office, Stoll was unable to communicate

directly with the lawyer who represented her in the EEOC

proceeding. Instead, her attorney sent all correspondence con-

cerning the case to Dr. Weber's office, where his receptionist

would open it and explain it to Stoll. Stoll's attorney would

also call the receptionist on the phone in order to communi-

cate about the case. According to Dr. Weber, this arrangement

was established because Stoll was so anxious and depressed

that she could not open her mail. Stoll would instead bring

large stacks of unopened correspondence regarding the Post

Office litigation to Dr. Weber because she was too trauma-

tized to open it alone. Dr. Weber testified that a further prob-

lem in Stoll's relationship with her attorneys was that they

were men, and she feared dealing with them directly.

 

According to Dr. Weber, Stoll has been unable to under-

stand her legal rights and act on them from the time he began

treating her in December, 1990. She is heavily medicated on

Valium and Vicodan. Valium is a barbiturate, and Vicodan is

a narcotic. She takes "a large amount" daily and "if she didn't

have the Valium, she'd might well kill herself." Dr. Weber

also testified that Stoll would probably continue to try to com-

mit suicide and that he was trying to keep her alive.

 

The ALJ issued his recommended decision on April 28,

1994. As described above, he found that Stoll was the victim

of both quid pro quo and hostile environment sexual harass-

ment. He also found that Stoll suffered extreme psychological

trauma as a result of the abuse. As remedies, he recommended

that Stoll receive both back pay with interest and front pay

until her normal retirement age, as well as the payment of her

attorney's fees, and furthermore expressed profound regret

that he was unable to assess damages against the Post Office

under Title VII as it existed at the time the incidents occurred.

In June, 1994, the Post Office issued a final agency decision

adopting all of the ALJ's factual findings and recommenda-

tions except for the award of front pay. Stoll appealed the

denial of front pay to the Office of Federal Operations (OFO).

 

On March 18, 1996, the OFO affirmed the Post Office's

decision not to award front pay, on the ground that the evi-

dence showed that Stoll might never work again. According

to the OFO, awarding front pay under such circumstances

would amount to awarding compensatory damages, which

were not then allowed under Title VII. This decision was

mailed to Stoll's then-attorney, who received it on March 25,

1996. As noted above, Dr. Weber testified that Stoll's counsel

did not communicate directly with her, but sent her papers to

Weber's office where his receptionist would open them, read

them, and explain them to Stoll. Stoll alleges that she never

received a copy of this letter. Dr. Weber testified that he did

not know whether she received it or not but that neither Stoll

nor his receptionist ever told him that Stoll lost her appeal and

he felt certain that if Stoll knew about it she would have told

him in therapy, as Stoll's experiences at the Post Office and

her subsequent legal battle for redress were the subject of

their work together.

 

The OFO decision directed the Post Office to calculate

Stoll's backpay within 60 days of its March 18 letter, and to

pay her in full within 60 days of the calculation. The OFO let-

ter further, without any evident trace of irony, directed the

Post Office to "afford EEO sensitivity training " to supervisor

John Garrard, ostensibly because he had raped a Post Office

employee. The Post Office complied with none of these reme-

dial actions. Instead, it did nothing for more than a year.

 

Stoll then filed a handwritten pro se complaint against the

Post Office for sexual harassment in violation of Title VII on

April 21, 1997. She attached to her complaint, and incorpo-

rated by reference, a copy of the ALJ's decision, as well as

a copy of an evaluation by the federal occupational psychia-

trist who found that she was eligible for disability benefits due

to work-related injuries inflicted by the sexual harassment,

and a letter from Dr. Weber stating that she was too psychiat-

rically disabled to comply with relevant time periods and

deadlines. The district court found that Stoll was eligible,

under the criteria set forth in Bradshaw v. Zoological Soc'y of

San Diego, 662 F.2d 1301, 1318 (9th Cir. 1981), to have

counsel appointed to represent her. Stoll's current lawyer,

Elaine Wallace, was subsequently appointed by the district

court's Bradshaw panel. It is worth noting that it was not until

three months after she brought this lawsuit that Stoll received

any part of the backpay award or attorneys' fees due her

under the OFO decision.

 

The Post Office filed a motion to dismiss or in the alterna-

tive for summary judgment on August 28, 1997, on the

ground that Stoll's claims for front pay were time-barred by

the applicable statute of limitations. It asserted that Stoll's

Title VII claim should be dismissed because Stoll did not file

her pro se complaint until more than a year after the OFO

decision letter was received by her counsel, which was well

past the 90-day limitation period. Stoll responded that the stat-

ute had been equitably tolled. The Post Office disagreed, con-

tending that she was not entitled to equitable tolling because

she was represented by counsel at the time the OFO decision

was issued. The district court accepted the Post Office's argu-

ment, and on November 10, 1997, entered an order dismissing

all of Stoll's claims. This appeal timely followed.

 

We review de novo the dismissal of a complaint on statute

of limitations grounds. Capitol Tracing, Inc. v. United States,

63 F.3d 859, 861 (9th Cir. 1995); Washington v. Garrett, 10

F.3d 1421, 1429 (9th Cir. 1993); Kruso v. Int'l Telephone and

Telegraph, 972 F.2d 1416, 1421 (9th Cir. 1989).

 

Analysis

 

[1] Stoll is entitled to equitable tolling of the statute of limi-

tations. Equitable tolling applies when the plaintiff is pre-

vented from asserting a claim by wrongful conduct on the part

of the defendant, or when extraordinary circumstances beyond

the plaintiff's control made it impossible to file a claim on

time. Alvarez-Machain v. United States, 107 F.3d 696, 700

(9th Cir. 1997). Stoll has produced more than sufficient evi-

dence to establish equitable tolling on both grounds as a mat-

ter of law. Indeed, the evidence is overwhelming. To state the

matter bluntly, if ever equity demanded tolling a statute of

limitations, it does so here.

 

[2] First, the Post Office is not entitled to benefit from the

fact that its own admittedly outrageous acts left Stoll so bro-

ken and damaged that she cannot protect her own rights. The

effects of the repeated sexual abuse, rape, and assault she

experienced left her severely impaired and unable to function

in many respects. She has attempted suicide numerous

times--and may do so again. She is unable to read, open mail,

or function in society. Thus, her failure to assert her claim

within the statutory period was a direct consequence of the

Post Office's wrongful conduct.

 

[3] Second, Stoll's mental incapacity--and the effect it had

upon her relationship with her lawyer--is an "extraordinary

circumstance" beyond her control. Brockcamp v. United

States, 67 F.3d 260 (9th Cir. 1995) ("Principles of equity

mandate that when mental incompetence precludes a person

from asserting his rights during the proper time period, he

should not be precluded from later seeking redress for his

injuries."), rev'd on other grounds,

519 U.S. 347

(1996). Stoll

presented overwhelming evidence that she was completely

psychiatrically disabled during the relevant limitation period.

 

[4] Finally, Stoll presented compelling evidence that her

mental illness, caused by the Post Office's wrongful conduct,

precluded her from exercising an agency relationship with the

attorney who handled her EEOC case. The district judge erred

when he failed to consider this evidence. Instead, he based his

refusal to toll the statute on his erroneous belief that Stoll had

not "offered any explanations" for the lapse, and incorrectly

presumed knowledge on her part of notice given to her attor-

ney. See Irwin v. Dept. of Veteran's Affairs,

498 U.S. 89

 

(1990) (holding that a client is generally charged with notice

given to his attorney). To the contrary, she offered a compel-

ling explanation -- one that is more than sufficient to toll the

statute of limitations as a matter of law.

 

[5] Equitable tolling is permitted even when a plaintiff has

a lawyer if the interests of justice so require and there is no

prejudice to the defendant. Pioneer Investment Servs. Co. v.

Brunswick Assoc. Ltd. Partnership,

507 U.S. 380

(1993).

Both standards are clearly met here. First, Stoll acted in good

faith and the interests of justice require that she not be barred

from pursuing her claim. Stoll did not file on time because her

attorney-client relationship, like the rest of her relationships

with men, was seriously damaged by the egregious conduct

that she seeks to redress in her lawsuit.

 

[6] Second, the Post Office's claim that it was prejudiced

by the delay is meritless. The only claimed prejudice that the

Post Office alleges is that it would not have paid Stoll's attor-

ney's fees had it known that she intended to pursue her front

pay claim. However, the Post Office had already accepted the

ALJ's recommendation that it pay Stoll's legal fees. The Post

Office offers no explanation, nor can we see any, of the sup-

posed prejudice inuring from satisfying a claim it was legally

obligated to pay. Furthermore, the Post Office's claim that it

would not have paid the fees had it known that Stoll was

going file a lawsuit in federal court is disingenuous, given that

the fees (and other amounts undisputedly due Stoll) were not

paid until July, 1997, several months after Stoll filed her pro

se complaint.

 

[7] Cynthia Stoll was sexually harassed, raped, and abused

by supervisors and coworkers at the Sacramento Post Office.

As a result of the defendant's plainly wrongful conduct, Stoll

was severely psychiatrically impaired. She presented compel-

ling direct evidence, which the district court failed to con-

sider, that this impairment interfered with her relationship

with her lawyer and rendered her unable to communicate with

him or to protect her legal rights. The uncontested findings of

the ALJ alone, however, are sufficient to require a judgment

in her favor on this point as a matter of law. In short, the

undisputed evidence in the record requires the application of

the doctrine of equitable tolling in Stoll's case, notwithstand-

ing that she had counsel in the administrative proceeding.1

Stoll is entitled to have her front pay claim considered on the

merits.

The judgment of the district court is REVERSED and the

case is REMANDED for further proceedings consistent with

this opinion. the end

 

_______________________________________________________________

 

FOOTNOTES

 

1 Although Stoll did not make a cross-motion for summary judgment on

the question of equitable tolling, such a motion is unnecessary because the

Post Office moved for summary judgment and none of the facts upon

which our decision rests are disputed. Summary judgment for the non-

moving party is appropriate if it is apparent from the record and at the

hearing that there is no genuine issue of material fact, and the non-movant

is entitled to judgment as a matter of law. Superior Engineering and Elec-

tronics Co., Inc., 833 F.2d 823, 825 (9th Cir. 1987); Cool Fuel, Inc. v.

Connett, 685 F.2d 309 (9th Cir. 1982).