NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 4 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SANDRA HOLMES, No. 17-35673

Plaintiff-Appellant, D.C. No. 3:16-cv-05317-BHS

v.

MEMORANDUM*

TACOMA PUBLIC SCHOOL DISTRICT

NO. 10; JOHN/JANE DOES 1-5,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Submitted August 30, 2018** Seattle, Washington

Before: McKEOWN, W. FLETCHER, and GOULD, Circuit Judges.

Sandra Holmes appeals the district court’s order granting summary judgment

in favor of Tacoma Public School District No. 10 (“the District”) in an action

asserting claims of wrongful termination and discrimination on the basis of her

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). race, disability, and age. Because the parties are familiar with the facts, we do not

repeat them here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The district court did not err in concluding that Holmes’ Title VII claims are

barred by her failure to exhaust her administrative remedies. A plaintiff alleging

employment discrimination must file a charge with the Equal Employment

Opportunity Commission (“EEOC”) within 300 days “after the alleged unlawful

employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1); Nat’l Passenger R.R.

Corp. v. Morgan, 536 U.S. 101, 104–05 (2002). Similarly, a plaintiff alleging

disability discrimination must file a charge with the EEOC within 300 days of the

alleged discriminatory act. 42 U.S.C. § 12117.

We agree with the EEOC that Holmes’ charge was untimely. Holmes’ filing

with the EEOC alleged that the discrimination took place from February 10, 2013

through February 7, 2014. She did not file her charge until October 5, 2015—well

over 300 days later. On appeal, Holmes alleges that her termination did not

become final until an administrative law judge upheld her termination in 2015, but

she cites no authority for this proposition, and did not include the administrative

law judge’s determination in her charge to the EEOC.

Holmes’ failure to timely file her charge to the EEOC is not necessarily

fatal. As the Supreme Court has held, the “time period for filing a charge is

subject to equitable doctrines such as tolling or estoppel.” Morgan, 536 U.S. at

2 113. “Equitable tolling is, however, to be applied only sparingly.” Nelmida v.

Shelly Eurocars, Inc., 112 F.3d 380, 384 (9th Cir. 1997). For example, the

Supreme Court has permitted equitable tolling when “the statute of limitations was

not complied with because of defective pleadings, when a claimant was tricked by

an adversary into letting a deadline expire, and when the EEOC’s notice of the

statutory period was clearly inadequate.” Scholar v. Pac. Bell, 963 F.2d 264, 268

(9th Cir. 1992) (collecting cases). But “[c]ourts have been generally unforgiving

. . . when a late filing is due to claimant’s failure ‘to exercise due diligence in

preserving [her] legal rights.’” Id. (quoting Irwin v. Dep’t of Veterans Affairs, 498

U.S. 89, 96 (1990)).

Here, Holmes presented no evidence that she diligently pursued her rights

under the statute. As the district court noted, Holmes could have filed a claim with

the EEOC that would have been held in suspension until her union rights were

investigated. Holmes’ assertion that she was unable to file a charge with the

EEOC until October 2015 because the District instructed her not to discuss her

termination with anyone else while she was on paid administrative leave is belied

by Holmes’ own admission that she spoke to other employees about her case while

her union representative was investigating the matter on her behalf. For those

reasons, the district court properly held that Holmes is entitled to equitable tolling,

and did not err in granting summary judgment on Holmes’ federal discrimination

3 claims because Holmes failed to timely file her charge with the EEOC.

Finally, the district court did not err in granting the District’s motion for

summary judgment with respect to Holmes’ claims under the Washington Law

Against Discrimination (“WLAD”) because Holmes failed to comply with

Washington’s notice claim statute, Wash. Rev. Code § 4.96.010(1). Holmes

contends that this statute only applies to common-law tort claims, not claims

created by statute. But Holmes cites no authority for this proposition, and in fact

Washington courts have held that similar notice claim statutes are applicable to

state statutory causes of action. See, e.g., Blair v. Wash. State Univ., 108 Wash. 2d

558, 576 (1987). Nor did Holmes’ notice with respect to her federal claims, by

filing a charge to the EEOC, satisfy notice requirements with respect to her state-

law claims under the WLAD. Accordingly, the district court did not err in granting

summary judgment in favor of the District on Holmes’ WLAD claims.

AFFIRMED.

4