Garcia v. Pacific Maritime Ass'n

Full title: Victor GARCIA; David Larriva; Albert McDonald; Victor Sanchez…

Court: United States Court of Appeals, Ninth Circuit

Date published: Feb 7, 2001

4 F. App'x 337 (9th Cir. 2001)

Opinion

4 Fed.Appx. 337 (9th Cir. 2001) Victor GARCIA; David Larriva; Albert McDonald; Victor Sanchez, Plaintiffs-Appellants, v. PACIFIC MARITIME ASSOCIATION; International Association Longshoremen & Warehousemen Union; Local 13 International Association of Longshoremen & Warehousemen Union, Defendants-Appellees. No. 99-55636. D.C. No. CV-98-09509-AAH. United States Court of Appeals, Ninth Circuit. February 7, 2001

Submitted December 8, 2000. ^*

* The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2)

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal was taken from an order of the United States District Court for the Central District of California, A. Andrew Hauk, J. The Court of Appeals held that employee refused retesting for drugs and reinstatement who later seeks reinstatement by a court was really litigating unfairness of original refusal, and thus, could not circumvent limitations period by alleging a continuing pattern of illegal conduct.

Affirmed.

Page 338.

Appeal from the United States District Court for the Central District of California A. Andrew Hauk, District Judge, Presiding.

Before D.W. NELSON, BRUNETTI, and KOZINSKI, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts in this circuit except as provided by Ninth Circuit Rule 36-3.

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 596 (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 who had also failed drug tests were later reinstated, as this was consistent with the rules in effect at the time.

AFFIRMED.