STOLL v RUNYON

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).