Garcia

MEMORANDUM **

Appellants argue that like in Lewis v. Local Union No. 100 of the Laborers’ International Union of North America, AFL-CIO, 750 F.2d 1368 (7th Cir.1984), in which the Seventh Circuit held that a union’s repeated failure to refer a member out for employment was a continuing pattern of illegal conduct, appellees’ repeated refusals to reinstate appellants constitutes a continuing violation. However, this case is more analogous to Collins v. United Air Lines, Inc., 514 F.2d 594 (9th Cir.1975), in which we held that a former airline employee claiming wrongful discharge could not circumvent the 90-day limitation period by alleging that the most recent denial of her request for reinstatement was within the limitation period. Instead, we found, “[a] discharged employee who seeks to be reinstated is really litigating the unfairness of his original discharge.” Id. at 5*96 (internal quotations omitted). This reasoning applies equally to the facts of this case: An employee refused retesting and reinstatement who later seeks reinstatement by a court is really litigating the unfairness of the original refusal. This conclusion is not affected by appellants’ contention that others…