San Diego Attorney Elizabeth J. Schulman
Elizabeth Schulman told her client that her case would be lost if Larkins
revealed Werlin's crimes during the OAH hearing. Schulman refused to
mention during the hearing the wrongdoing by Richard Werlin and Chula
Vista Elementary School District, even though Schulman herself had told her
client that Richard Werlin had committed crimes against her.
Schulman refused to mention during the hearing that the district violated
Labor Code section 1102.5 when it dismissed Maura Larkins for reporting
Even when Maura Larkins pointed out to Schulman the specific lines in
Richard Werlin's deposition testimony in which he had contradicted
himself, Schulman refused to confront Richard Werlin on the stand with
his false testimony.
Was Richard Werlin prepped in a sure-fire method to get
Schulman to betray her client?
Minutes before Maura Larkins' OAH hearing began on January 6, 2003, Richard Werlin
got up from his chair and came over to the table where Elizabeth Schulman--the opposing
counsel, officially, at least--was seated. He greeted Schulman, but ignored her client
Maura Larkins. He gave Schulman some chocolate candy, and began to regale her with
memories of holiday treats on special occasions in his youth.
SCHULMAN KEPT SWORN TESTIMONY BY JO
ELLEN HAMILTON OUT OF HEARING
Elizabeth Schulman, who was Maura Larkins' lawyer during her January
6-10, 2003 dismissal hearing at the San Diego Office of Administrative
Hearings, refused to reveal to the Commission on Professional Competence
that Jo Ellen Hamilton had denied Richard Werlin's claims under oath.
Werlin told the CPC that Hamilton feared for her life. Elizabeth Schulman
sat silent during the hearing, causing the panel to believe Werlin's testimony
that Jo Ellen Hamilton's phone call was the reason he removed Maura
Larkins from her classroom on February 12, 2001.
Schulman also kept silent about the misdemeanors committed by the district
and California Teachers Association, and flat-out refused to depose Gina
Boyd, President of her client's local affiliate.
During his deposition, Werlin had told Schulman, apropos of nothing, that his grandfather
was a rabbi. The two of them had chatted about holidays on that occasion, also. I
confess that I wasn't convinced that Werlin was telling the truth about his grandfather,
but later I learned that Werlin is, indeed, the grandson of Rabbi Isaac Werlin of Hudson,
Schulman was clearly not offended by Werlin's behavior. It appeared that Werlin had
been advised by his lawyer to woo Schulman's favor in this manner.
This may explain why Schulman told her client that she should not mention that Werlin's
crimes of obtaining a police report of an arrest that did not lead to charges, and using that
information to destroy Larkins' career. Schulman said that it was obvious that Werlin had
obtained the report, and it was the reason he took action against Larkins. Schulman said
he'd suffered enough by not being chosen Superintendent in 2002. Schulman clearly felt
he deserved to be Superintendent, although she had no knowledge of him apart from the
Maura Larkins case. One wonders why she wanted this promotion for Werlin.
Werlin also made fun of the "colorful" people to be found in Hillcrest. Perhaps he'd been
coached to appeal to Schulman's conservative attitudes.
But really, Mr. Werlin, did you need to resort to homophobia?
FIRST CAUSE OF ACTION
NEGLIGENT ADVICE TO A CLIENT
13. On or about March 27, 2003, SCHULMAN negligently advised Plaintiff that
Plaintiff had 90 days to file a Petition for Judicial Review of the decision of the
Commission on Professional Competence (Exhibit 1).
14. Plaintiff relied on such advice and in consequence thereof Plaintiff filed her Petition for
Writ of Mandate ninety days after the decision was mailed, instead of the required 60 days,
and that Petition was dismissed on the basis of being late filed. Plaintiff so acted only on the
advice of Defendant SCHULMAN and would not have so acted without such advice.
15. As a direct and proximate result of the above-described negligence and carelessness of
Defendant, Plaintiff was damaged in that Plaintiff’s Petition for Writ of Mandate (Exhibit 2),
which would have been given precedence in Superior Court over other cases, and regarding
which the Superior Court would have made an independent judgment on the evidence, was
summarily dismissed, and Plaintiff’s dismissal from employment became final and Plaintiff
suffered loss of her career and livelihood, including salary and future benefits, and severe
emotional distress in an amount according to proof at trial.
16. Plaintiff is informed and believes, and on the basis of that information and belief alleges,
that had SCHULMAN used proper skill and care in her representation of Plaintiff, Plaintiff
would have prevailed in her Petition for Writ of Mandate since she was entitled to Judicial
Review and the independent judgment of the Superior Court.
SECOND CAUSE OF ACTION
LACK OF DILIGENCE IN COMMUNICATION WITH CLIENT AND
REPRESENTATION OF CLIENT RESULTING IN BREACH OF DEFENDANT’S
GOOD FAITH AND FIDUCIARY DUTY
18. SCHULMAN was negligent in her representation of Plaintiff on January 6, 2003, and
subsequently. Defendant failed to use reasonable skill and care in that SCHULMAN
negligently and carelessly:
(a) Allowed at least one fake document to be placed in evidence by
Mark Bresee, the District’s lawyer, without pointing out the significance
of the false statements in the false document, especially after Werlin
admitted that the document represented by Parham and Rajcic’s
attorney to be the November 21, 2001 report by Richard Werlin was not
actually the document Richard Werlin gave to Plaintiff on November 21,
It is a felony to knowingly produce into evidence a fake document, and
this matter should have been pursued. Professional courtesy between lawyers
should not be allowed to destroy a client’s career.
(b) failed to demand that missing documents be produced, even
1) there were glaring omissions in consecutively numbered documents,
2) notes by Cindy Miller, official note-taker, were missing,
3) SCHULMAN caused Plaintiff to believe that missing pages would be
produced but she didn’t bother to demand them,
4) failed to show documents to Plaintiff in a timely manner, possibly so
Plaintiff wouldn’t know was missing and insist that missing documents
(c) failed to put Jo Ellen Hamilton on the stand to contradict
Richard Werlin’s testimony that Ms. Hamilton feared for her life (Exhibit
3) and therefore Richard Werlin had to remove Plaintiff from her
Ms. Hamilton had testified in her deposition (Exhibit 4) that she had had
no fear for her life and had not been distraught, and had only called Mr.
Werlin to ask about a meeting;
SCHULMAN also failed to put Ms. Hamilton on the stand to testify that
Mr. Werlin had suggested that she call him, and that he was not surprised as he
claimed in his testimony.
(d) After having refused to look at documents which Plaintiff brought to her office, telling
Plaintiff to take them home, SCHULMAN also refused to place into evidence multiple copies
of documents Plaintiff brought to the hearing. SCHULMAN brought empty boxes to the
hearing to pretend she had lots of evidence. By these actions SCHULMAN caused the
Commission to think Plaintiff was lying when she testified that she had written letters to the
board that were not in evidence nor were they located in the many bankers’ boxes which
Schulman had brought.
(e) didn’t question Richard Werlin as to whether Linda Watson had called him on same
night as Jo Ellen Hamilton, allowing him to evade stating whether or not Linda called. The
knowledge that Ms. Watson had made an accusation which was deemed untrue and unreliable
by the District when it asked Plaintiff to come back to work, would have put Linda’s later
allegations into question. Even though the District’s lawyer as much as admitted that Ms.
Watson had called Richard Werlin, and Werlin very likely would have admitted it if asked
directly, SCHULMAN ignored the important question of Linda Watson’s credibility.
19. Plaintiff is informed and believes, and on the basis of that information and belief alleges,
that had defendant used proper skill and care in her representation of Plaintiff, Plaintiff would
have prevailed in her administrative hearing since the above-mentioned evidence, if presented,
would have made it clear that her dismissal was a violation of the Labor Code, the State and
Federal Constitutions, and had been accompanied by gross misconduct on the part of the
20. As a direct and proximate result of the above-described negligence and carelessness of
Defendant SCHULMAN, Plaintiff was damaged in that the Commission on Professional
Competence upheld Plaintiff’s dismissal from employment and Plaintiff suffered loss of her
career and livelihood, including salary and future benefits, and severe emotional distress in an
amount according to proof at trial.
WHEREFORE, plaintiff requests judgment from all defendants sued in above causes of action
Plaintiff believes that since Plaintiff’s civil tort action was filed before the School Board voted
to terminate her, and since the District had caused significant damage to Plaintiff before she
was terminated, that the amount of damages caused by SCHULMAN’s negligence can only
be calculated after Plaintiff’s civil suit against the District and other individuals is decided.
1. Plaintiff MAURA LARKINS is an individual and is now, and at all times mentioned in this complaint
was, a resident of San Diego County, California.
2. Defendant ELIZABETH SCHULMAN, hereinafter referred to as SCHULMAN, is an individual and is
now, and at all times mentioned in this complaint was, a resident of San Diego County, California.
3. Defendant, SCHULMAN, at all times mentioned in this complaint was licensed to practice law and
practiced law in San Diego County, California.
4. The true names of defendants DOES 1 through 10, inclusive, are unknown to plaintiff at this time.
Plaintiff sues those defendants by such fictitious names pursuant to section 474 of the Code of Civil
Procedure. Plaintiff is informed and believes, and based on that information and belief alleges, that each
of the defendants designates as a DOE is legally responsible for the events and happenings referred to in
this complaint, and unlawfully caused the injuries and damages to plaintiff alleged in this complaint.
5. On or about June 11, 2002, Plaintiff retained and employed SCHULMAN to represent Plaintiff in an
administrative hearing regarding Plaintiff’s dismissal from employment with Chula Vista Elementary
School District. SCHULMAN accepted such employment and agreed to represent Plaintiff.
6. The administrative hearing regarding Plaintiff’s dismissal from employment took place on January 6,
2003 through January 10, 2003.
7. An attorney is expected to possess a knowledge of those plain and elementary principles of
law that are commonly known by well-informed attorneys, and to discover those additional rules of law
which, although not commonly known, may be readily found by standard research techniques [Smith v.
Lewis (1975) 13 Cal. 3d 349, 358.
8. When an attorney accepts employment to give legal advice or to render other legal services,
the attorney impliedly agrees to use such skill, prudence, and diligence as attorneys of ordinary skill
and capacity commonly possess and exercise in the performance of the tasks they undertake [Kirsch v.
Duryea (1978) 21 Cal. #d 303, 308.
9. The standard (of care for attorneys) is that of members of the legal profession in the same or similar
locality under similar circumstances [Wright v. Williams (1975) 47 Cal. App. 3d 802, 809.
10. On or about February 11, 2002, the Commission on Professional Competence mailed a decision to
11. In rendering legal services to Plaintiff pursuant to such representation, SCHULMAN failed to
exercise reasonable care and skill as specified in the following causes of action.
) Case No.
) COMPLAINT FOR DAMAGES:
|SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
and DOES 1 through 10, inclusive,
Complaint Against Attorney Elizabeth Schulman for Negligence
"I'm more conservative than you think,"
Elizabeth Schulman told her client.
What did this mean? Apparently this meant that Schulman would not bring
up the criminal Labor Code violations of Assistant Superintendent Richard
Werlin and the Chula Vista Elementary School District during her client's
Why didn't Elizabeth Schulman follow up when Mark Bresee
cherry-picked Bate-stamped documents? Incompetence? Or
Elizabeth Schulman spent her time writing pleading after pleading in an
effort to get a lawsuit against her husband thrown out. But she wasn't
interested in the client who paid her $35,000.
"Queen of Sexual Harrassment Lawsuits"
The California State Bar has NO problem with the antics of the self-styled
U.S. 9th Circuit Court of Appeals
SARAH LOVELL, a minor, by and
through her guardian ad litem,
Gregory C. Lovell; GREGORY C.
POWAY UNIFIED SCHOOL DISTRICT;
SCOTT FISHER, in his official
capacity; MARY HEATH, in her
Appeal from the United States District Court for the Southern District of California
Anthony J. Battaglia, Magistrate Judge
Argued and Submitted November 16, 1995--Pasadena, California Filed July 18, 1996
Before: Cynthia Holcomb Hall and John T. Noonan, Jr., Circuit Judges, Philip M. Pro, ,
Opinion by Judge Hall; Partial Concurrence and Partial Dissent by Judge Noonan
Christopher J. Welsh, Stutz, Gallagher, Artiano, Shinoff & Holtz, San Diego, California,
for the defendants-appellantscross-appellees.
Elizabeth Schulman, Schulman & Schulman, San Diego, California, for the
HALL, Circuit Judge:
Sarah Lovell, a student at Mt. Carmel High School in the Poway Unified School District
("PUSD"), allegedly threat ened Linda Suokko, a school guidance counselor, that she
would shoot her if Suokko did not make changes to Lovell's class schedule. Suokko
filed a disciplinary report with school administrators, and the school suspended Lovell
for three days.
Lovell denies that she threatened Suokko, and claims that she merely uttered a "figure of
speech" under her breath while in Suokko's office. Lovell and her parents discussed the
incident with school officials and requested that the disciplinary report be removed from
Lovell's file. When the school and the PUSD refused to take any action, Lovell instituted
this suit against the PUSD and several school officials. She claimed that, by punishing her
as a result of her speech, the school violated her rights under the First Amendment of the
United States Constitution and the California Education Code. Furthermore, she claimed
that she was denied procedural and substantive due process.
The district court rejected her due process claim, but found that the defendants did
violate her First Amendment rights. Because she prevailed on one of her claims, the
district court awarded her partial attorney's fees under 42 U.S.C.S 1988.
The defendants timely appealed. Lovell cross-appealed on the due process claim and
the amount of attorney's fees awarded. Her appeal of the due process claim was
rejected, however, because it was not timely filed. The district court had jurisdiction
under 28 U.S.C. S 1331, and this court has jurisdiction under 28 U.S.C. S 1291. We
In February 1993 Sarah Lovell was a 15-year-old 10th grade student. On February 2,
she visited Linda Suokko to request changes to her class schedule. Lovell was shuttled
back and forth between the counselor's office and the administrative offices for several
hours while she attempted to effect the changes. When Lovell finally arrived back at
Suokko's office around 1:30 in the afternoon she was frustrated and irritable. This visit
to Suokko's office was to have been Lovell's final stop in this brouhaha; Suokko was to
have simply entered the approved changes into the school's computer system.
As she entered the changes, however, Suokko noticed that Lovell had been approved
for courses that were already overloaded. She told Lovell that she may not be able to
make the changes. Lovell, at the end of her patience, made the remark that is the basis
of this suit: Lovell claims she said "I'm so angry, I could just shoot someone," whereas
Suokko claims she said "If you don't give me this schedule change, I'm going to shoot
you!"1 Lovell then apologized to Suokko for her inappropriate behavior. Suokko
completed the requested schedule change, and Lovell left the office.
Later that day, Suokko reported Lovell's conduct to Assistant Principal Scott Wright.
Suokko told Wright that she felt threatened by the statement and was concerned about
some future reprisal by Lovell. Suokko filled out a Student Office Referral form and
reported the threat as a disciplinary incident to Assistant Principal Mary Heath.
On February 4, two days after the incident, Heath called a meeting with Suokko and
Lovell to discuss the matter. At that meeting Lovell admitted making one of the
statements given above, although there is some dispute as to what she admitted. But she
also claimed that she did not mean anything by it. Suokko said that Lovell was "angry,
serious and emotionally out of control when the statement was made," and that she felt
threatened. After Heath met with Lovell, Suokko, and Lovell's parents, Heath decided
to suspend Lovell for three days.
At first, the Lovells planned to accept the suspension. But when they received a copy of
the Student Referral Form submitted by Suokko, they were extremely upset by her
portrayal of the events. Specifically they felt that Suokko's version of events differed a
great deal from their daughter's version, and that Suokko's report was too strongly
worded for the events as they understood them. 2 They wrote a letter to the school
principal, Scott Fisher, demanding that the Referral be removed from Sarah's file. When
the school refused to take any action, the Lovells filed this suit against PUSD, Mr.
Fisher, and Ms. Heath (hereinafter referred to collectively as "PUSD").
Lovell asserted a variety of federal and state law claims that her rights were violated
when PUSD suspended her from school. First, she claimed that the suspension violated
her First Amendment free speech rights, as guaranteed by the United States
Constitution. Second, she asserted a supplemental state law claim that she was
improperly suspended in violation of her free speech rights under California Education
Code Section 48950. Third, she claimed that PUSD denied her adequate procedural
and substantive due process. Finally, she claimed that PUSD violated 42 U.S.C. S 1983
by imposing discipline on her in contravention of the rights set forth above.
The parties stipulated to a bench trial before a magistrate judge. The court found that
PUSD had provided appropriate procedural and substantive due process. Lovell v.
Poway Unified Sch. Dist., 847 F. Supp. 780, 785 (S.D. Cal. 1994). However, the
court also held that PUSD had violated Lovell's free speech rights because her statement
did not constitute "the requisite `threat' required by law, under either contention as to the
exact words spoken, to allow infringement on her right of free speech." Id. The court
awarded Lovell 50% of the requested attorney's fees under 42U.S.C. S 1988, for work
done in furtherance of the successful First Amendment claim.
We review a district court's conclusions of law de novo. United States v. Yacoubian, 24
F.3d 1, 3 (9th Cir. 1994). A district court's findings of fact are reviewed under the
clearly erroneous standard. Exxon Co. v. Sofec, Inc., 54 F.3d 570, 576 (9th Cir.
1995). Different standards are sometimes used when reviewing district court cases in
which the court adjudged the constitutionality of a restriction on speech. When the
district court upholds a restriction on speech as constitutional, this court conducts a de
novo review of the facts. Daily Herald Co. v. Munro, 838 F.2d 380, 383 (9th Cir.
1988). However, when the district court strikes down a restriction on speech, as in the
current case, this court reviews the findings of fact for clear error. Id. "This rule `reflects
a special solicitude for claims that the protections afforded by the First Amendment have
been unduly abridged.'" Id. (quoting Planned Parenthood Assoc. v. Chicago Transit
Authority, 767 F.2d 1225, 1229 (7th Cir. 1985)).
The magistrate judge found that PUSD violated Lovell's rights as guaranteed by the
California Education Code and the First Amendment of the United States Constitution.
Because we find that the magistrate incorrectly applied the relevant law, we now reverse.
Our first concern is that the magistrate judge improperly conflated Lovell's federal and
state law claims. We recognize the rule that when a violation of state law causes the
deprivation of a right protected by the United States Constitution, that violation may
form the basis for a Section 1983 action. Hallstrom v. City of Garden City, 991 F.2d
1473, 1482 n.22 (9th Cir.) (holding that the violation of a state law requiring a
post-arrest hearing before a magistrate judge constituted a cause of action under Section
1983), cert. denied, 114 S. Ct. 549 (1993). However, Section 1983 limits a federal
court's analysis to the deprivation of rights secured by the federal "Constitution and
laws." 42 U.S.C. S 1983. To the extent that the violation of a state law amounts to the
deprivation of a state-created interest that reaches beyond that guaranteed by the federal
Constitution, Section 1983 offers no redress. Brown v. Nutsch, 619 F.2d 758, 764 (8th
Cir. 1980); cf. Hallstrom, 991 F.2d at 1482 n.22.
The California Education Code ensures that "a student shall have the same right to
exercise his or her right to free speech on campus as he or she enjoys when off campus."
Cal. Educ. Code S 48950 historical and statutory notes. The district court merged this
statute with Section 1983 and found that PUSD violated Lovell's free speech rights. But
by analyzing the free speech rights at issue here as if both federal First Amendment law
and the California Education Code were coextensive, the district court implicitly and
inappropriately allowed the California Education Code to trump federal constitutional
law. We cannot enlarge federally protected rights simply because California chose to
expand its statecreated rights.
As a result, the federal First Amendment claim, asserted pursuant to Section 1983, must
be evaluated under federal constitutional law. The state law claim, on the other hand,
must be decided under the state's interpretation of free speech rights. Although these
two areas of law overlap, they differ in their treatment of students' freedom of expression
while on campus. The Supreme Court has held that the First Amendment guarantees
only limited protection for student speech in the school context. See, e.g., Tinker v. Des
Moines Indep. Sch. Dist., 393 U.S. 503, 509 (1969) (holding that schools can punish
student conduct that would "materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school" without violating the First
Amendment); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) ("A
school need not tolerate student speech that is inconsistent with its basic educational
mission, even though the government could not censor similar speech outside the
school."); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986) ("[T]he
constitutional rights of students in public school are not automatically coextensive with
the rights of adults in other settings."). In contrast, the California Educa tion Code
extends students' free speech rights while on campus to the same extent those rights may
be exercised outside of the school context. See Cal. Educ. CodeSS 48907 and
48950.3 Consequently, different outcomes may result when evaluating violations of
students' free speech rights under federal and state law.
Nonetheless, in this case we find that the outcome under both federal and state law is the
same. Threats of physical violence are not protected by the First Amendment under
either federal or state law, and as a result, it does not matter to our analysis that Sarah
Lovell uttered her comments while at school. To resolve the federal claim, we need not
rely upon the Supreme Court cases that limit students' free speech rights; because we
hold that threats such as Lovell's are not entitled to First Amendment protection in any
forum, it does not matter that the statement was made by a student in the school context.
Thus, our analysis focuses upon whether PUSD could punish Sarah Lovell based on her
statement, without violating her First Amendment free speech rights, regardless of
whether the conduct occurred on or off campus.
3 California Education Code Section 48950 provides that:
(a) School districts operating one or more high schools and private secondary schools
shall not make or enforce any rule subjecting any high school pupil to disciplinary
sanctions solely on the basis of conduct that is speech or other communication, that,
when engaged in outside of the campus, is protected from governmental restriction by
the First Amendment to the United States Constitution or Section 2 of Article 1 of the
California Constitution. . . .
(d) Nothing in this section prohibits the imposition of discipline for harassment, threats,
or intimidation, unless constitutionally protected.
In general, threats are not protected by the First Amendment. Watts v. United States,
394 U.S. 705 (1969) (holding that the statement, "If they ever make me carry a rifle the
first man I want to get in my sights is L.B.J.," was political hyperbole and not a "true
threat" given its context). Statutes punishing threats "must be interpreted with the
commands of the First Amendment clearly in mind. What is a threat must be
distinguished from what is constitutionally protected speech." Id. at 707.
We have set forth an objective test for determining whether a threat is a "true threat"
and, thus, falls outside the protection of the First Amendment: "whether a reasonable
person would foresee that the statement would be interpreted by those to whom the
maker communicates the statement as a serious expression of intent to harm or assault."
United States v. Orozco-Santillan, 903 F.2d 1262 (9th Cir. 1990). Furthermore,
"[a]lleged threats should be considered in light of their entire factual context, including the
surrounding events and the reaction of the listeners." Id. (citing United States v. Gilbert,
884 F.2d 454, 457 (9th Cir. 1989), cert. denied, 493 U.S. 1082 (1990) and United
States v. Mitchell, 812 F.2d 1250, 1255 (9th Cir. 1987)); accord United States v.
Kelner, 534 F.2d 1020 (2d Cir.) ("So long as the threat on its face and in the
circumstances in which it is made is so unequivocal, unconditional, immediate and
specific . . . as to convey a gravity of purpose and imminent prospect of execution, the
statute may properly be applied."), cert. denied, 429 U.S. 1022 (1976). In light of the
violence prevalent in schools today, school officials are justified in taking very seriously
student threats against faculty or other students. 4
California courts have also considered the issue of First Amendment protection for
threats. See, e.g., In re M.S., 42 Cal. Rptr. 2d 355 (Cal. 1995) (upholding the
constitutionality of state hate crimes statutes that punish threats if the speaker has the
apparent ability to carry out the threat and has reasonably induced fear of violence in the
victim); People v. Fisher, 15 Cal. Rptr. 2d 889 (Cal. App. 1 Dist. 1993) (upholding a
conviction under a criminal statute that punishes threats, even though the defendant had
no intent to carry out the threat, "as long as the circumstances are such that the threats
are so unambiguous and have such immediacy that they convincingly express an intention
of being carried out."). In these cases, the California courts relied on both
Orozco-Santillan and Kelner to determine whether a threat is a "true threat" and
therefore may be criminalized. Thus, federal law and California state law substantially
agree with respect to First Amendment protection of threats.
Applying the tests set forth above, the magistrate judge found that no matter which
statement Lovell made, it did not constitute a "true threat." Although the judge correctly
stated the applicable law, we find that he erred when applying the law to the facts of this
case in several respects. In reaching his conclusion, the judge lost sight of the fact that
the ultimate inquiry is whether a reasonable person in Lovell's position would foresee
that Suokko would interpret her statement as a serious expression of intent to harm or
assault. Considering only Suokko's version of the facts for a moment, there is no
question that any person could reasonably consider the statement "If you don't give me
this schedule change, I'm going to shoot you," made by an angry teenager, to be a
serious expression of intent to harm or assault. A reasonable person in these
circumstances would have foreseen that Suokko would interpret that statement as a
serious expression of intent to harm. This statement is unequivocal and specific enough
to convey a true threat of physical violence. This is particularly true when considered
against the backdrop of increasing violence among school children today.
Furthermore, when considering the surrounding factual context, the magistrate judge
focused too much on the actions taken or not taken by Suokko following Lovell's
outburst.5 We believe that the judge read too much into Suokko's reaction immediately
following the incident. Suokko has stated repeatedly that she felt threatened when Lovell
confronted her as she did. The fact that she chose not to seek help instantly is not
dispositive. She did report the conduct to Assistant Principal Wright within a few hours,
before she went home that day. Exhibiting fortitude and stoicism in the interim does not
vitiate the threatening nature of Lovell's conduct, or Suokko's belief that Lovell
threatened her. Therefore, under Suokko's version of the facts, the PUSD did not
violate Lovell's First Amendment rights.
It is a closer question, however, whether Lovell's version of the facts would merit the
same response. When they are frustrated people do utter expressions such as "I'm so
frustrated I could just shoot someone." It is not clear that one should foresee that such a
statement will be interpreted as a serious expression of intent to harm. Unfortunately, the
magistrate found that the evidence as to which statement Lovell actually said stood in
equipoise, Lovell, 847 F. Supp. at 783, and we cannot say that this finding of fact is
clearly erroneous.6 In general, if the evidence is evenly balanced, such that a decision on
the point cannot be made one way or the other, then the party with the burden of
persuasion loses. See Director, Office of Workers' Compensation Programs v.
Collieries, 114 S. Ct. 2251, 2255 (1994); see also Bristow v. Drake Street Inc., 41
F.3d 345, 353 (7th Cir. 1994) ("Burdens of persuasion affect the outcomes only of
cases in which the trier of fact thinks the plaintiff's and defendant's positions
equiprobable."); Texas Distributors, Inc. v. Local Union No. 100, 598 F.2d 393, 402
(5th Cir. 1979); NLRB v. Patrick Plaza Dodge, Inc., 522 F.2d 804, 809 (4th Cir.
1975). As the plaintiff in this case, Lovell had the ultimate burden of proving that PUSD
violated her First Amendment rights. This issue turns in part upon what she said.
Because she did not preponderate in her version of the facts, she has failed to meet this
Given the level of violence pervasive in public schools today, it is no wonder that
Suokko felt threatened. Nonetheless, we do not mean to suggest that one need only
assert that he or she felt threatened by another's conduct in order to justify overriding
that person's right to free expression. While courts may consider the effect on the listener
when determining whether a statement constitutes a true threat, the final result turns upon
whether a reasonable person in these circumstances should have foreseen that his or her
words would have this effect.
Based on the foregoing analysis, we do not agree with the magistrate judge that it makes
no difference which version of Lovell's statement was actually uttered. Lovell had the
burden to prove that PUSD violated her free speech rights, and she did not carry that
burden. We find that her statement, as characterized by Suokko, was not entitled to
First Amendment protection. Therefore, the PUSD did not violate Lovell's First
Amendment right to free expression under either federal or state law when it suspended
her for threatening a school guidance counselor.
The magistrate judge awarded partial attorney's fees to Lovell pursuant to 42 U.S.C. S
1988. Section 1988 authorizes fee awards to the "prevailing party" in an action pursuant
to 42 U.S.C. S 1983. Because we have reversed the judgment for Lovell on the merits,
she can no longer be considered a prevailing party. Turner v. McMahon, 830 F.2d
1003, 1009 (9th Cir. 1987), cert. denied, 488 U.S. 818 (1988). Accordingly, the
award of attorney's fees is vacated.
We recognize that violence is prevalent in public schools today, and that teachers and
administrators must take threats by students very seriously. It is for this reason that we
cannot ignore the fact that Sarah Lovell has failed to prove that she did not utter the
statement that directly and unambiguously threatened physical harm to her guidance
counselor. Therefore, the district court's judgment is REVERSED.
NOONAN, Circuit Judge, concurring and dissenting:
I concur in the judgment of the court that Sarah Lovell has not proven her federal claim,
but I do not believe the court is correct in analyzing Lovell's federal and state claims by a
single "threat" analysis.
Lovell's federal claim is based on the First Amendment, which affords students in
schools a right of expression limited by their educational environment and accords
appropriate deference to school officials in carrying out their educational mission. See
Bethel School District No. 403 v. Fraser, 478 U.S. 675, 682 -83 (1986). Sarah Lovell
sassed her guidance counsellor. It was within the school district's discretion to find
Lovell's expression inappropriate for school discourse and to discipline her for it after a
fair hearing. Id.
Lovell's state claim, however, is based on California Education Code S 48950, which
provides a high school student "the same right to exercise his or her right to free speech
on campus as he or she enjoys when off campus." Cal. Educ. Code S 48950 note (b).
For this claim we must consider Lovell's conduct as though it was "engaged in outside of
the campus." Id. S 48950(a). The scope of this recently enacted statute will no doubt be
narrowed in the courts of California; but this task is better left in the first instance to
those courts. See 28 U.S.C. S 1367(c)(1). The district court could now decide not to
exercise its supplemental jurisdiction.
If the district court does retain jurisdiction, what is crucial for determining whether
Lovell's expression was a true threat is what Lovell uttered. The magistrate judge's
findings on this issue are incomplete. Remand of the state claim is appropriate. True, the
magistrate judge stated that neither party preponderated in proving what expression
Lovell used; he did so on the assumption that he need not determine those words in
order to find ultimately that Lovell had proven her case. Lovell v. Poway Unified School
District, 847 F. Supp. 780, 783 (S.D. Cal. 1994) ("Neither party preponderated in their
evidence, nor are the exact words necessary to the Court's findings."). As that
assumption was mistaken, the trial court should reconsider the state claim, with the clear
understanding of what facts are dispositive. See, e.g., Starsky v. Williams, 512 F.2d
109, 117-18 (9th Cir. 1975) Remand would also enable the district court, if it chooses
to exercise its supplemental jurisdiction, to reconsider its findings solely under the state
statute and the appropriate test analyzing the speech as if it occurred outside of school.
[ Footnote 1 ] The magistrate judge found that neither side prevailed in its proof
regarding what Lovell actually said. Lovell v. Poway Unified Sch. Dist., 847 F. Supp.
780, 783 (S.D. Cal. 1994). Although Suokko only listed one version of Lovell's
statement in the disciplinary report, she testified at trial that Lovell said both versions of
the statement. According to Suokko's testimony, the exchange was as follows: Lovell
walked into Suokko's office and immediately said, "If you don't give me the schedule
change I'm going to shoot you." Suokko then said, "I'm not used to having people
walking into my office and telling me they're going to shoot me." After this, Lovell said,
"I'm so angry I could shoot somebody." Reporter's Transcript ("RT") Vol. I, at
193-201. Lovell's version of events is somewhat different. According to her testimony,
she entered Suokko's office and handed her the approval form for her requested
schedule change. Suokko began typing the change into the computer, but then stopped
and said, "Well, he [Scott Wright] put you in all overloaded classes, you might have to
go back." Lovell then put her head in her hands and muttered under her breath,"I'm so
angry I could just shoot someone." When she looked up, Suokko had "a blank look on
her face," and Lovell realized that she must have heard the statement. Lovell then
apologized for her inappropriate comment. RT Vol. I, at 44-45.
Although the magistrate judge did not resolve what was actually said, he appears to have
accepted Lovell's version of events, at least in part. In his factual findings, the judge
indicated that Lovell did not make the statement immediately upon entering Suokko's
office, but instead after Suokko told her that she had been put into overloaded classes.
Lovell, 847 F. Supp. at 782-83.
[ Footnote 2 ] The relevant section of Suokko's student office referral stated:
When Sarah entered my counseling office, after seeing Scott Wright, Sarah stated, ". . .
if you don't give me this schedule change, I'm going to shoot you!" I believe that the tone
and manner conveyed by Sarah Lovell demonstrates possible future danger. I have
witnessed Sarah's volatile nature, poor and lack of impulse control, and possible violent
verbal tendencies. I am extremely concerned about Sarah's potentially explosive
Excerpts of Record ("ER") at 35.
[ Footnote 4 ] See United States v. Lopez, 115 S. Ct. 1624, 1659 (1995) (Breyer, J.,
dissenting), for a list of sources supporting the proposition that "the problem of guns in
and around schools is widespread and extremely serious." These materials list a variety
of disturbing statistics, such as "four percent of American high school students . . . carry
a gun to school at least occasionally." Id. Furthermore, "they report that this widespread
violence in schools throughout the Nation significantly interferes with the quality of
education in those schools." Id.
[ Footnote 5 ] The judge based his judgment in part on the fact that Suokko did not
seek immediate assistance or speak to anyone about the threat for three hours. Lovell,
847 F. Supp. at 785. But the judge failed to consider that Suokko was in the midst of
processing student schedule changes, and a long line of students waited outside her
door. She continued to meet with the waiting students, and left to report the incident to
Scott Wright at the first possible moment, which was three hours after the incident.
[ Footnote 6 ] In this case, only the trial judge saw the witnesses testify, and he alone
was in a position to assess their credibility. Unfortunately, he made no factual findings
detailing his credibility determinations.
Joyce C. MORGAN, Plaintiff-Appellant,
KOPECKY CHARTER BUS COMPANY and Ken Kopecky,
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 26, 1984.
Decided May 1, 1985.
Joyce C. Morgan, Elizabeth Schulman, Schulman & Schulman, San Diego, Cal., for
Robert W. Bell, Jr., San Diego, Cal., for defendants-appellees.
Appeal from the United States District Court for the Southern District of California.
Before WALLACE and NORRIS, Circuit Judges, and HATTER,* District Judge.
WALLACE, Circuit Judge:
Morgan appeals from the district court's order appointing counsel in this Title VII case
without providing for attorneys' fees and expenses on behalf of her counsel, Schulman.
We dismiss the appeal.
* For part of 1979, Morgan worked as a bus driver for the Kopecky Charter Bus
Company (Kopecky) in San Diego. Kopecky discharged her on November 25, 1979.
After her discharge, she filed an employment discrimination claim with the Equal
Employment Opportunity Commission (EEOC). The EEOC investigated Morgan's claim
of sex discrimination, made a cause determination in her favor, and issued a right-to-sue
letter. Morgan, proceeding in propria persona, then sued Kopecky under Title VII, 42
U.S.C. Secs. 2000e to 2000e-17.
After filing suit, Morgan sought an attorney. She contacted a number of San Diego
attorneys, only four of whom expressed any willingness to represent her, including the real
party in interest to this action, Schulman. These attorneys, however, were unwilling to
represent her strictly on a contingency fee basis, requiring instead either a continuing
payment of fees or an advance retainer.
Morgan, however, was financially unable to meet either continuing or advance obligations.
Morgan requested the district court to appoint counsel for her and to authorize federal
funds for the payment of attorneys' fees and costs. The district court denied the motion.
During the pendency of Morgan's appeal, we decided Bradshaw v. Zoological Society of
San Diego, 662 F.2d 1301 (9th Cir.1981) (Bradshaw II ). Shortly after our decision,
Morgan asked the district court for a stay of proceedings pending appeal of its order
denying appointment of counsel and authorization of funds for fees and costs. At the
hearing on this motion, the district court appointed Schulman as Morgan's attorney.
Schulman, who had assisted Morgan in some of her in propria persona efforts and made a
special appearance for Morgan at motion hearings, refused to serve unless compensated.
The district court ordered the appointment over her protest, then granted a stay of further
proceedings for thirty days to permit an appeal from the order. Morgan, with Schulman
acting as her attorney and the first appeal still pending, timely filed a second appeal.
We vacated and remanded the first appeal in light of Bradshaw II. We dismissed the
second appeal because the filing of the first notice of appeal had divested the district court
of jurisdiction to amend its order. On remand, now with jurisdiction, the district court
reappointed Schulman as Morgan's counsel, to serve without compensation unless
Morgan prevails on the merits. This third appeal was then submitted to us on the basis of
the second appeal's briefs and oral arguments.
The issue before us is narrow. Morgan does not challenge the district court's power to
appoint involuntary counsel under 42 U.S.C. Sec. 2000e-5(f)(1)(B), and therefore the
statutory or constitutional questions relating to it are not before us. Cf. Bradshaw v.
United States District Court, 742 F.2d 515, 518-19 (9th Cir.1984) (Bradshaw III )
(assuming without deciding that this power exists). Moreover, although Morgan initially
challenged the failure to provide for fees under the prohibition against involuntary servitude
under the thirteenth amendment, she has abandoned that argument on appeal, and that
issue also is not before us. See, e.g., Bradshaw III, 742 F.2d at 517 & n. 2; Brooks v.
Central Bank of Birmingham, 717 F.2d 1340, 1342-43 (11th Cir.1983) (per curiam);
White v. United States Pipe & Foundry Co., 646 F.2d 203, 205-07 (5th Cir.1981); cf.
United States v. Dillon, 346 F.2d 633, 635-36 (9th Cir.1965) (involuntary
noncompensable appointments not violative of due process), cert. denied, 382 U.S. 978,
86 S.Ct. 550, 15 L.Ed.2d 469 (1966) (Dillon ).
This appeal, now properly before us, initially presents a jurisdictional question. We must
decide whether a Title VII plaintiff may take an interlocutory appeal from the denial of a
motion, made at the outset of a lawsuit, for funds to pay involuntarily appointed counsel a
reasonable fee from public funds. In Bradshaw II, we concluded that the collateral order
doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93
L.Ed. 1528 (1949) (Cohen ), permitted an appeal from an order denying the appointment
of counsel under Title VII, 42 U.S.C. Sec. 2000e-5(f)(1)(B). Bradshaw II, 662 F.2d at
Cohen permits appeals from a small class of orders that "finally determine claims of right
separable from, and collateral to, rights asserted in the action, too important to be denied
review and too independent of the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated." Cohen, 337 U.S. at 546, 69 S.Ct. at 1225.
In Bradshaw II, we concluded that an order denying the appointment of counsel satisfied
the three Cohen criteria, as restated in Coopers & Lybrand v. Livesay, 437 U.S. 463,
468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) (Livesay ): (1) it conclusively
determined a disputed question; (2) it resolved an issue distinct from the merits; and (3) it
would be effectively unreviewable on appeal from a final judgment. Bradshaw II, 662
F.2d at 1306-14.
We conclude that the rationale of Bradshaw II does not extend to this case. The question
of fees pendente lite is conceptually distinct from the denial of the appointment of counsel
for appealability purposes. The district court's denial of fees at this stage fails to satisfy
two of the Cohen factors: it does not conclusively determine the fees issue, and it is
effectively reviewable on appeal from a final judgment.
In Yakowicz v. Pennsylvania, 683 F.2d 778 (3d Cir.1982) (Yakowicz ), the Third Circuit
concluded that an order granting or denying interim fees under Title VII is not appealable.
See id. at 782-84. The court held that the failure to grant interim fees failed the first prong
of the collateral order test: it did not conclusively determine the question of attorneys' fees.
Id. at 783. The court concluded that because fees were still available in the district court if
the plaintiff prevailed on the merits, the issue was still open. Id. We agree. Morgan, if she
prevails, may petition the district court for fees at the close of the case, including all fees
and costs incurred during the pendency of the litigation. 42 U.S.C. Sec. 2000e-5(k).
Similarly, we agree with the Third Circuit's analysis that the denial of interim fees is
effectively reviewable upon appeal. The district court, once matters are adjudicated, can
determine whether Morgan is entitled to fees, and the losing party on that issue may
appeal the result at that time. See Yakowicz, 683 F.2d at 783.
The argument could be made that the question of the right to interim attorney's fees cannot
by its very nature be reviewed once a final order, fully disposing of all the claims, has been
made. Such an argument would have persuasive force if section 706(k) [42 U.S.C. Sec.
2000e-5(k) ] established two distinct classes of attorney's fees, "interim attorney's fees"
and "attorney's fees awarded upon final judgment," and vested in the "prevailing party" a
right to each. Section 706(k), however, does nothing of the sort. It merely gives the
district court the discretion to award attorney's fees to the prevailing party.
Id. at 783-84 (emphasis in original). We agree with this analysis and conclude that,
because the issue of fees remains open, and because the issue is effectively reviewable
upon appeal, the third Cohen criteria has not been demonstrated.
"[T]he 'collateral order' doctrine set out in Cohen must be narrowly construed." Id. at
783. To qualify under Cohen, an appellant must demonstrate that all three criteria are met.
See Livesay, 437 U.S. at 468, 98 S.Ct. at 2457. Because two of the three criteria are not
met in this case, we hold that the order of the district court is not appealable.
This result does not conflict with Bradshaw II because, in that case, the district court had
conclusively determined the question of appointed counsel. That issue could never be
reopened in the district court. Moreover, the denial of appointed counsel raised the
specter of a pro se plaintiff unable to obtain a full and fair hearing of her civil rights
complaints. No such prejudice is presented here. Nor can we accept the argument that
the quality of representation might deteriorate because it must proceed on a pro bono
basis. See Bradshaw III, 742 F.2d at 518-19 (recognizing the general obligation to
undertake such cases pro bono); Dillon, 346 F.2d at 636-38 (recognizing the historical
obligation to undertake pro bono representation).
Our result, moreover, does not conflict with existing precedent that has found the denial of
fees appealable in some circumstances. In In re Derickson, 640 F.2d 946, 948 (9th
Cir.1981) (per curiam), we concluded that an order denying fees under the Criminal
Justice Act, 18 U.S.C. Sec. 3006A, was appealable under Cohen. In that case, however,
the district court had made its final decision about fees after a final judgment. See id. at
947-48. Therefore, the Cohen exception actually was not required. Although in
Smallwood v. National Can Co., 583 F.2d 419 (9th Cir.1978), we reviewed an interim
fee order prior to final judgment, we did so on an appeal from an injunction, thereby
vesting this court with jurisdiction under 28 U.S.C. Sec. 1292(a)(1). See id. at 420-21.
Moreover, the fees in that case were only fees incurred on the injunction proceeding. Id.
at 421. Similarly, although the Fifth Circuit awarded interim fees to the plaintiffs in James
v. Stockham Valves & Fittings Co., 559 F.2d 310 (5th Cir.1977), cert. denied, 434 U.S.
1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978), it did so while reviewing a final judgment
for the defendants. See id. at 314, 358-59. See also Yakowicz, 683 F.2d at 784-86 & n.
Finally, we conclude that Yakowicz cannot be distinguished merely because counsel in
that case was not appointed. Morgan did not challenge her counsel's appointment, but
challenged only the failure to award fees prospectively to her involuntarily appointed
counsel. Therefore, this order is functionally indistinguishable from the order in Yakowicz,
and we find the reasoning of that case persuasive. We thus dismiss this appeal for lack of
Honorable Terry J. Hatter, Jr., United States District Judge, Central District of California,
sitting by designation
760 F.2d 919
37 Fair Empl.Prac.Cas. 1240,
36 Empl. Prac. Dec. P 35,197
678 F2d 844 Lute v. Singer Company
678 F.2d 844
28 Fair Empl.Prac.Cas. 1700,
29 Empl. Prac. Dec. P 32,846
Sharon LUTE, Plaintiff-Appellant,
The SINGER COMPANY, Kearfott Division, a New Jersey
United States Court of Appeals,
Argued and Submitted Jan. 13, 1982.
Decided June 4, 1982.
Elizabeth Schulman, Schulman & Schulman, San Diego, Cal., for plaintiff-appellant.
Peggy L. Braden, Stamford, Conn., for defendant-appellee.
Appeal from the United States District Court For the Southern District of California.
Before FLETCHER, POOLE, and CANBY, Circuit Judges.
FLETCHER, Circuit Judge:
The district court dismissed appellant Sharon Lute's Title VII civil suit for lack of subject
matter jurisdiction. The district court also awarded attorney's fees, travel expenses, and
costs to appellee Singer Co. as the prevailing party. See 42 U.S.C. § 2000e-5(k) (1976).
Lute appeals. We note jurisdiction under 28 U.S.C. § 1291 (1976) and reverse.
In October 1976, Lute filed a sex discrimination complaint with the Equal Employment
Opportunity Commission (EEOC) and the California Fair Employment Practices
Commission (FEPC) against her employer, Singer Co. The EEOC deferred to an FEPC
investigation of the complaint; that investigation led to a finding of no discrimination. After
review of the FEPC investigation and findings, the EEOC issued to Lute a
no-reasonable-cause determination and a Notice of Right to Sue, dated May 5, 1978. See
29 C.F.R. §§ 1601.19-.28 (1980).1
In June 1978, Lute, pursuant to 29 C.F.R. § 1601.21(b) (1980), asked the EEOC to
reconsider its determination and reopen the case. Appellant's reconsideration request cited
a pending investigation of Singer by the Office of Federal Contract Compliance (OFCC).
Appellant claimed that the OFCC investigation would unearth additional evidence of
Singer's discrimination that would be relevant to her complaint.
On August 3, 1978, less than 90 days after Lute was sent the initial Notice of Right to
Sue, the EEOC notified both parties that it had decided to reopen her case, withdraw the
no-reasonable-cause determination, and revoke the Notice of Right to Sue. Some 16
months later, on January 21, 1980, following additional investigation, the EEOC issued
Lute a second no-reasonable-cause determination and a second Notice of Right to Sue.
Lute filed her civil suit within 90 days of this second Notice.
On Singer's motion, the district court dismissed appellant's civil suit for lack of subject
matter jurisdiction reasoning that (1) the EEOC had no authority to issue Lute a second
Notice of Right to Sue; (2) the 90-day filing period for civil suits under Title VII was
jurisdictional; and, (3) since Lute did not file suit within 90 days of the first Notice, the
court could not hear the case. The district court also awarded Singer costs and attorney's
If the EEOC has authority to issue appellant a second Notice of Right to Sue, appellant's
civil suit meets the jurisdictional requirements of Title VII and was dismissed improperly.
A. Applicability of this Court's Decision in Cleveland v. Douglas Aircraft Co.
Appellee Singer relies on Cleveland v. Douglas Aircraft Co., 509 F.2d 1027 (9th Cir.
1975), to argue that the EEOC cannot issue a second Notice of Right to Sue. In
Cleveland, we stated:
The issuance by the EEOC of a second right to sue letter ... is without effect. The EEOC
had no statutory authority to issue such a letter and therefore the 30-day period must be
deemed to run from the issuance of the first letter.
Id. at 1030.2 Cleveland, however, is distinguishable from this case.
In Cleveland, the EEOC did not issue its second Notice of Right to Sue following a
reconsideration of the plaintiff's case authorized by regulation. Instead, in Cleveland the
EEOC issued the complainant a Notice of Right to Sue before it had finished investigating
his complaint. Later, the EEOC informed Cleveland that it would complete its investigation
of his complaint, and, further, that he could ignore the previously issued Notice of Right to
Sue although there was no statutory basis for this advice.3 Accordingly, Cleveland
requested dismissal of his civil suit filed pursuant to the first Notice, waited for the EEOC
to complete its investigation, then, upon receipt of a new Notice of Right to Sue, filed again
in district court. We affirmed dismissal of Cleveland's civil suit because it was not timely
filed with respect to the first Notice and because the EEOC's issuance of the second
Notice, if approved, would lead to a "hodgepodge of ad hoc determinations by the
EEOC." Id. Moreover, more than 7 years had elapsed between filing of the discrimination
complaint and this court's review of the case. Id.4 These extraordinary circumstances are
not duplicated in the instant case.
Here, the EEOC first completed its administrative investigation, then withdrew its original
determination after it decided that plaintiff's claim warranted administrative reconsideration.
Such reconsideration clearly is authorized by 29 C.F.R. § 1601.21(b) (1980). The
EEOC, when it decided to reconsider Lute's case, also rescinded the original Notice of
Right to Sue issued to her. The Commission found authority to take such action implicit in
its authority to reconsider her case. Further, there is no suggestion here of prejudicial
delay. On these facts, we find the decision in Cleveland, involving unauthorized
Commission action and extraordinary delay, not controlling in the instant case.
B. EEOC Authority to Rescind a Notice of Right to Sue
The only question that remains is whether the EEOC correctly assumed that its authority to
reconsider a Title VII complaint encompassed authority to rescind a previously issued
Notice of Right to Sue. Both the Fifth and Tenth Circuits have held that, in those limited
situations when the EEOC decides that it should reconsider a determination on a Title VII
complaint, it not only has the authority to reconsider, but it also has authority to rescind a
Notice of Right to Sue, if one accompanied the original determination. Both courts,
however, have limited the EEOC's authority to rescind a Notice of Right to Sue to those
cases in which the EEOC decides to reconsider and notifies all parties of its decision within
90 days after it first issues a Notice of Right to Sue. Trujillo v. General Electric Co., 621
F.2d 1084, 1086-87 (10th Cir. 1980); Gonzalez v. Firestone Tire & Rubber Co., 610
F.2d 241, 245-46 (5th Cir. 1980).
A number of persuasive reasons support the decisions in Trujillo and Gonzalez. First, since
the EEOC has authority to reconsider a case and change its original decision, a rule that
precludes revocation of the Notice of Right to Sue accompanying the original decision
would frustrate effective reconsideration by forcing all parties to proceed with both a civil
suit and an administrative investigation at once. Trujillo, 621 F.2d at 1086-87; Gonzalez,
610 F.2d at 245-46. Second, a rule that circumscribes effective reconsideration also
discourages administrative resolution of Title VII complaints-the preferred method of
resolution-and could lead to unnecessarily harsh results for the party suffering the burden
of the Commission's potentially erroneous original conclusion. Gonzalez, 610 F.2d at 246.
Finally, by limiting the time in which the EEOC may rescind a Notice of Right to Sue to the
90-day period in which suit may be brought, Trujillo and Gonzalez protect both
defendant's and plaintiff's interest in speedy resolution of Title VII complaints without
unduly restricting the EEOC's ability to address its own errors. In light of these
considerations, we are persuaded to adopt the rule of Trujillo and Gonzalez.
The instant case fits precisely within this rule. The EEOC first issued plaintiff a
no-reasonable-cause determination and a Notice of Right to Sue. It then decided to
reconsider its original determination and rescind plaintiff's Notice. The Commission
informed the parties of this decision within 90 days after it first issued plaintiff's Notice of
Right to Sue. After reconsideration and a second no-reasonable-cause determination, the
EEOC issued plaintiff a second Notice of Right to Sue. On these facts, we hold that the
EEOC had authority to issue the second Notice. The district court therefore improperly
dismissed plaintiff's Title VII civil suit for lack of subject matter jurisdiction.
Accordingly, the judgment of the district court is REVERSED, the award of costs and
attorney's fees to defendant Singer is VACATED and the case is REMANDED for further
proceedings consistent with this opinion.5
POOLE, Circuit Judge, dissenting.
I cannot concur in the majority opinion because I believe that the outcome here is
controlled by our previous decision in Cleveland v. Douglas Aircraft Co., 509 F.2d 1027
(9th Cir. 1975).
In Cleveland the EEOC issued a Notice of Right to Sue Letter prior to completion of its
administrative investigation. After this court's decision in Cunningham v. Litton Industries,
413 F.2d 887, 890 (9th Cir. 1969), the Commission informed appellant that he should
ignore the first letter, and it issued a subsequent Notice of Right to Sue Letter after
completing its investigation. In discussing the effect of the second letter, the court
The EEOC had no statutory authority to issue such a letter and therefore the 30-day
period must be deemed to run from the issuance of the first letter. 509 F.2d at 1030
Accordingly, the court affirmed the dismissal of the plaintiff's action since he failed to sue
within 30 (now 90) days of his receipt of the first letter.
The outcome of that case did not hinge, as the majority suggests, on whether the second
letter was issued pursuant to an authorized reconsideration of the Commission's reasonable
cause determination. Instead, the court expressed its general concern that the EEOC
should not be permitted to preempt a "congressionally mandated period of limitation in
favor of a hodgepodge of ad hoc determinations by the EEOC." 509 F.2d at 1030. That
same concern is equally applicable here since the EEOC's withdrawal of an earlier right to
sue letter pursuant to a reconsideration of its earlier decision presents the same threat of
effectively nullifying the 90 day limitation period.
I recognize the competing policy expressed in Gonzalez v. Firestone Tire & Rubber Co.,
610 F.2d 241, 246 (5th Cir. 1980), and Trujillo v. General Electric Co., 621 F.2d 1084,
1086 (10th Cir. 1980), that the EEOC should not be hindered from seeking administrative
resolution of such claims. However, given the clear impact of our holding in Cleveland, this
issue is simply not now open and cannot be avoided by reliance upon an agency regulation.
Although 29 C.F.R. §§ 1601.19-.28 have been amended since plaintiff received her first
Notice of Right to Sue, none of the amendments affect provisions relevant to this case.
Compare 42 Fed.Reg. 55, 391-93 (1977) with 44 Fed.Reg. 4,669 (1979)
Section 2000e-5(e) was amended by the Equal Employment Opportunity Act of 1972 to
allow for a 90-day period in which to file suit. Pub.L.No.92-261, 86 Stat. 103 (current
version codified at 42 U.S.C. § 2000e-5(f)(1) (1976))
The EEOC correctly issued the early Notice in response to a district court decision in
Cunningham v. Litton Industries, 1 Fair Empl.Prac.Cas. (BNA) 252 (C.D.Cal.1967). We
subsequently reversed the district court's Cunningham decision. Cunningham v. Litton
Industries, 413 F.2d 887, 890 (9th Cir. 1969). In Cleveland, however, we found the
EEOC's advice to the plaintiff, based on our reversal of Cunningham, unacceptable
because unauthorized. Cleveland, 509 F.2d at 1030. See also note 4 and accompanying
Further, it cannot be presumed that the appellee has not been prejudiced because of the
delay. Over 7 years have elapsed since the alleged act of discrimination. Certainly,
memories have dimmed and one of appellee's witnesses has died
Id.; see Boone v. Mechanical Specialties Co., 609 F.2d 956, 958-59 (9th Cir. 1979).
Because we find that the EEOC had authority to issue appellant a second Notice of Right
to Sue, we find it unnecessary to address the equitable extension argument she raises. We
also find it unnecessary to address the propriety of the award of costs and attorney's fees
to the defendant in a Title VII action. If, however, the district court should again confront
the issue in this case, we direct its attention to the proper standard to apply in determining
whether an award of fees against a Title VII plaintiff is appropriate. That standard is set
forth in Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54
L.Ed.2d 648 (1978), and Shah v. Mt. Zion Hospital and Medical Center, 642 F.2d 268,
270 n. 2 (9th Cir. 1981)
* 678 F.2d.
In the Matter of the Appeal by
BEFORE THE STATE PERSONNEL BOARD OF THE STATE OF CALIFORNIA
From dismissal from the position of Parole Agent I with the Department of the Youth
Authority at San Diego
Case No. 97-2349
Appellant filed a writ petition, which was granted by the San Diego Superior Court. On
May 22, 2000, the Fourth District Court of Appeal reversed the superior's court order
granting the writ, and upheld the Board's decision.
May 5 -6, 1998
APPEARANCES: Elizabeth J. Schulman, Attorney, on behalf of appellant, Joseph Garcia;
Karen J. Kilpatrick, Hearing Specialist, on behalf of respondent, Department of the Youth
BEFORE: Florence Bos, President; Richard Carpenter, Vice President; Ron Alvarado,
Appellant, Joseph Garcia, was dismissed from his position as a Parole Agent I with the
Department of the Youth Authority (the “Department”) for admittedly having smoked
marijuana in a motel room with two friends on one occasion. The Administrative Law Judge
(the “ALJ”) who presided at the hearing sustained the dismissal. The ALJ found, however,
that the Department’s failure, at the time it served the proposed adverse action, to provide
to appellant a copy of an investigation report prepared by the San Bernardino Sheriff’s
Department that, among other things, documented appellant’s admitted marijuana use,
constituted a violation of appellant’s pre-termination due process rights as described in
Skelly v. State Personnel Board (“Skelly”) (1975) 15 Cal. 3d 194.
Upon the foregoing findings of fact and conclusions of law and the entire record in this case,
it is hereby ORDERED that:
1. The adverse action of dismissal of JOSEPH GARCIA from his position of Parole Agent I
with the Department of the Youth Authority at San Diego is sustained.
2. This decision is certified for publication as a Precedential Decision.
(Government Code § 19582.5).
STATE PERSONNEL BOARD
Florence Bos, President
Richard Carpenter, Vice President
Ron Alvarado, Member
* * * *
I hereby certify that the State Personnel Board made and adopted the foregoing Decision
and Order at its meeting on May 5 - 6,1998.
State Personnel Board
|THE PETITION WAS
DENIED SOLELY ON THE
BASIS THAT IT WAS
< < <
WROTE TO STOP
HER CLIENT FROM
PETITION ON TIME
Schulman cut Rick Werlin's
deposition short, refusing to
ask the highly specific
questions she had agreed to
ask, questions that her client
had printed out.
Elizabeth Schulman kept
popping up from her chair
throughout the hearing,
demanding that her client's
grievances be kept OUT OF
THE RECORD, that they NOT
BE ACCEPTED AS EVIDENCE.
kept popping up
from her chair
"...in an abundance of
caution, I may have
previously told you 60
On March 27, 2003,
after the hearing,
when Elizabeth Schulman
learned that Maura Larkins
was preparing an appeal, and
planned to file it within 60
days of the OAH decision,
Schulman wrote a letter
saying: "C.C.P. 1094 requires
a petition to be
filed no later the ninetieth day
following the date on which
the decision becomes final...
SCHULMAN WROTE TO
STOP HER CLIENT
FROM FILING A
Maura Larkins prepared a
petition for writ of mandate
which was almost ready two
weeks before it had to be
filed. The petition clearly
pointed out that the decision
was illegal on its face
because the decision violated
Labor Code Section 1102.5
by dismissing Maura Larkins
precisely because she had
filed grievances and a
lawsuit. Attorney Elizabeth
Schulman did not want the
petition to be granted.
Who hacked this
document? It wasn't
the author of this
else blacked out this
letter from Elizabeth
Schulman to Maura
March 27, 2003
Re: Petition for Writ of Mandate
Dear Ms. Larkins:
Thank you for your fax of 03/26/03. You have previously indicated you did not have
funds to appeal the Commission's decision. I have a longstanding office policy of not
providing self-help to clients to pursue matters in pro
There are C.E.B books available at law libraries on mandamus and administrative
mandamus, which set forth the proper forms, procedures, and timelines. You may also
wish to refer to C.C.P.1085, et seq. More specifically, you may wish to study
C.C.P. 1094.5 and 1094.6. C.C.P. 1094(b) requires a petition to be filed no later
than the ninetieth day following the date on which the decision becomes final with
respect to any commission decision. In an abundance of caution, I may have
previously told you 60 days.
I am unable to handle this matter with my current workload. I discourage you from
proceeding on your own. I wish you well.
Very truly yours,
Why did Elizabeth
for Writ of
Mandate to be
filed on time?
Schulman charged her
client $35,000.00 for work
in this case. Then, when
her client's money ran out,
and her client prepared her
own petition, Schulman
feared that the OAH
decision would be
Schulman wrote her client
the letter at left, falsely
stating that there was a
90-day deadline, rather
than the 60-day deadline
which her client planned to
Why did Schulman write,
"I discourage you from
proceeding on your own"?
Was it because this would
underscore both her own
and Werlin's wrongdoing?
DUE TO SCHULMAN'S
THE APPEAL WAS NEVER
CONSIDERED ON ITS
Why didn't Schulman want
this appeal considered on its
merits? Because if a court
reviewed the Schulman's
dishonest actions would
have been exposed.
Her client never imagined
that Elizabeth Schulman was
deceiving her regarding the
90-day filing deadline.
As a result of the letter,
Schulman's client worked an
extra month on her petition,
and filed it on the 90th day
after the decision.
The petition was rejected
because it was late-filed.
David A. Stevens
to Maura Larkins
........How did Maura
Larkins end up with a
lawyer who, Larkins
later found out, had a
wide reputation for
laziness and losing
cases? Schulman was
recommended by David
A. Stevens and Sandra
Schmidt. Stevens said it
was an easy case that
Larkins would surely
But Schulman said to
Larkins on the last day
of her OAH hearing, "I
hate these cases. I
Larkins wishes Schulman had
mentioned this fact before
she collected $35,000.
Larkins wonders why David
A. Stevens recommended
Schulman, and why Steven's
partner Sandra Schmidt said,
"[Schulman] does well in
Could Stevens' attitude be
related to his stated worries
that he considered Daniel
Shinoff to be a friend, and
that he hoped Shinoff would
still speak to him after some
event that took place before
Larkins met Stevens?
Can something be done to
clean up the excessive
professional courtesy among
A complaint was filed with
the Bar Association of
California, but the Bar didn't
see anything wrong with
|Judge Styn threw
out Maura Larkins'
For details, see
|Schulman, Maura Larkins'
own attorney, and CVESD
attorney Mark be Because
accepted into evidence as if
the writers had been sworn
in. Why did Schulman do
told her client that
Richard Werlin had
committed a crime, but
warned her client not to
mention it because "it
would hurt [the client]."
Schulman was clearly
determined to sacrifice
her client to save
indicated that she
believed Werlin would
have been chosen
superintendent if he
hadn't done this, and
she felt that losing that
Elizabeth Schulman also
refused to point out to
themselves and Richard
What did the California
State Bar Association
say about this? It said
there was nothing
wrong with this.
Daniel Shinoff relied on
and the illegal and
decision (which on its
face violated Labor
to defame Larkins.
None of the
teachers listed B
appeared to testify
at Larkins' OAH
Most likely this occurred
because those teachers who
had been deposed had
contradicted themselves and
Maura Larkins' own attorney
Elizabeth Schulman refused
to point out to the
Commission that the district's
themselves and each other.
Instead, she and Mark
Bresee agreed to have notes
written by these people
accepted into evidence as if
the writers had been sworn
Legal Question #1:
Are these teachers therefore
guilty of perjury?
Legal Question #2:
Did the lawyers violate the
Lovell v. Poway Unifed School District
The court awarded Lovell
50% of the requested
attorney's fees under 42U. ...
A threat to student
Journal article by Perry A.
Zirkel; Phi Delta Kappan, Vol.
by Perry A. Zirkel
In February 1993 Sarah
Lovell was a 10th-grader at
Mt. Carmel High School in
San Diego County, California.
On February 2 at 1:30 p.m.,
she revisited her school
counselor, Linda Suokko, in
her efforts to change her class
schedule. Lovell had been
shuttled back and forth
between the counselor's office
and the administrative offices
for several hours as she
attempted to secure the
changes. As a result, she was
frustrated and irritable. This
visit was to have been her final
stop in this brouhaha; Suokko
simply needed to enter into the
school's computer system the
changes that had been
approved by Scott Wright, the
As she entered the changes,
however, Suokko noticed that
the courses that Wright had
approved were already
overloaded. She advised
Lovell of the problem and told
her that she might have to go
back to Wright's office. At the
end of her patience, Lovell
uttered a statement that was
later subject to dispute.
According to Suokko, Lovell
said, "If you don't give me the
schedule change, I'm going to
shoot you." According to
Lovell, she muttered simply,
"I'm so angry I could just
shoot someone." In any event,
Lovell immediately apologized
to Suokko, who completed
the requested schedule
change, and Lovell left the
Approximately three hours
later, after processing schedule
changes for the long line of
students waiting outside her
door, Suokko reported
Lovell's statement to Wright.
She told him that she felt
threatened by the content and
manner of the statement, which
implied that she might be in
some future danger from
Lovell. After consulting with
Wright, she filled out a student
referral form, reporting the
matter as a disciplinary
incident to Mary Heath,
another assistant principal.
Two days later, Heath called a
meeting with Suokko and
Lovell to discuss the matter.
Lovell admitted part of the
allegations but claimed that she
merely muttered a "figure of
speech" and meant no harm.
Suokko retorted that she had
felt threatened, in that Lovell
was "angry, serious, and
emotionally out of control
when the statement was
made." Heath informed Lovell
that she was being suspended
from school for three days.
Heath then met with Lovell's
parents to advise them of their
daughter's suspension for
threatening her counselor.
Although at first the Lovells
accepted the suspension, when
they received a copy of the
student referral form, they
became extremely upset by
Suokko's portrayal of the
events. They found Suokko's
assertions that Sarah
immediately and individually
targeted her and that Sarah
had a "volatile nature, ... lack
of impulse control, ... possible
violent verbal tendencies,
[and] potentially explosive
behavior" to be strongly at
variance with their
understanding of what had
The Lovells wrote to the
school principal demanding
that the referral report be
removed from Sarah's file.
When the school refused to
take any action, they filed suit
in federal court against the
district and its administrative
officials, claiming violations of
due process under the 14th
Amendment and of free
speech under the First
Amendment and under
The parties agreed to a bench
trial before a magistrate judge.
After hearing the matter, the
judge held that the district had
procedural and substantive
due process under the 14th
Amendment but that it had
violated Lovell's free speech
rights under the First
Amendment. He predicated
the First Amendment ruling on
the conclusion that Lovell's
statement did not constitute
"the requisite 'threat' required
by law, under either contention
as to the exact words spoken,
to allow infringement on her
right of free speech." As a
result, he awarded the Lovells
50% of their requested
attorney's fees (which totaled
$22,728 at that point), based
on the work done for their
successful First Amendment
The district filed for review of
the lower court's First
Amendment ruling by the
Ninth Circuit Court of
Appeals. On 29 March 1996,
the Ninth Circuit affirmed the
lower court's ruling, finding
support in these surrounding
Lovell did not act physically
threatening toward Suokko;
she had spoken to Suokko
several other times on the
same day about the schedule
change so her frustration at
their final meeting should not
have been entirely unexpected;
... she apologized immediately
after making the disputed
statement; ... Suokko did not
act afraid, shaken, or
apprehensive at any time;
[and] she did not seek
The school district petitioned
for certiorari to the U.S.
Supreme Court. However, on
7 June 1996, before the
Supreme Court ...
Elizabeth Schulman - #69370
Current Status: Active
This member is active and may
practice law in California.
See below for more details.
Bar Number 69370
Address Schulman &
3130 4th Ave # 103
San Diego, CA 92103
Phone Number (619)
Fax Number (619)
e-mail Not Available
District District 9
Queens Coll; Flushing NY
County San Diego
Law School Univ of San
Diego SOL; San Diego CA
Sections Labor &
Effective Date Status
6/25/1976 Admitted to
The State Bar of California
|San Diego Education Report