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Madden-Tyler v. Maricopa County3/6/1997
me, a question of "application," not of "characterization." The "character" of a cause of action does not change based on the identity of the party against whom it is brought. See Ryan v. State, 134 Ariz. 308, 656 P.2d 597 (1982)(although areas of immunity remain, in other respects state and its agencies are subject to the same tort liability as private citizens). "Questions of tolling and application" of statutes of limitation often depend on who is being sued.
However, Wilson holds that one statute of limitations will be applied to all § 1983 actions within a state, and the majority has, I agree, correctly followed that directive.
The Arizona Civil Rights Act ("ACRA") is most analogous to the Rehabilitation Act and the ADA. In my view, the majority has erred in failing to have recourse to an applicable ACRA statute of limitations.
Under ACRA, an aggrieved person has 180 days after the commission of an unlawful employment practice to file a charge of discrimination with the ACRD or the EEOC, and the agency has a presumptive period of 60 days to investigate the charge and determine whether the charge is supported by probable cause. If the agency dismisses the charge, or fails to act within 90 days after the claimant filed it, the agency issues a notice to the claimant. Within 90 days after the notice is given, the claimant may sue. In other words, in the absence of any agency delay in investigating the charge or issuing the notice, the claimant has 360 days from the act complained of to sue. If agency delay makes the claimant unable to file timely, a "safety valve" provision allows a suit to be brought up to one year after the charge was filed with the agency. A.R.S. § 41-1481(D).
The majority concludes that, because an Arizona claimant must file its ACRA claim with an agency, and a federal claimant under the Rehabilitation Act or the ADA need not, the ACRA limitations period does not track the same events and cannot apply to the federal actions. I disagree. Appellant's filing of this lawsuit was unimpeded by any agency delay (because she sought no agency action on her claims). I can see no reason that the 360-day limitations period of ACRA could not and should not apply to appellant, who sued over 500 days after the allegedly offending practice was committed by appellees. If appellant had sought the assistance of federal agencies in investigating and pursuing her claim, she could have, if it proved necessary, claimed the benefit of the analogous ACRA "safety valve," expanded limitations period.
To be sure, the majority's approach affords the benefit of providing a uniform rule for actions brought in Arizona under § 1983, the Rehabilitation Act, or the ADA. But our charge, as I understand it, is to find an appropriately analogous Arizona statutory scheme and apply its statute of limitations. I would do so here, and affirm dismissal as to the claims brought under the Rehabilitation Act and the ADA.
JON W. THOMPSON, Judge
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