TAYLOR SCOTT, an individual, Plaintiff-Appellant, v. GINO MORENA ENTERPRISES, LLC, a California limited liability company; DOES, 1-50, inclusive, Defendants-Appellees.
No. 16-56200
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
April 27, 2018
D.C. No. 3:15-cv-00550-JLS-WVG
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding
Argued and Submitted February 7, 2018 Pasadena, California
Filed April 27, 2018
Before: Consuelo M. Callahan and Jacqueline H. Nguyen, Circuit Judges, and Joseph F. Bataillon,* District Judge.
Opinion by Judge Callahan
SUMMARY**
Employment Discrimination
The panel affirmed in part and reversed in part the district court‘s summary judgment in favor of the defendant on claims under Title VII of the Civil Rights Act of 1964.
The panel held that, under
The panel held that the plaintiff‘s claims based on a second administrative charge were untimely, but she could base her Title VII claims on the defendant‘s alleged acts occurring after she filed her first administrative charge to the extent she could show such acts were part of a single hostile work environment claim.
The panel affirmed the district court‘s grant of summary judgment only as to claims based on discrete discriminatory or retaliatory acts occurring after the plaintiff filed her first administrative charge. The panel otherwise reversed and remanded.
COUNSEL
Armond M. Jackson (argued) and Neil Pedersen, Pedersen Law APLC, Irving, California, for Plaintiff-Appellant.
Daniel E. Gardenswartz (argued) and Leah S. Strickland, Solomon Ward Seidenwurm & Smith, San Diego, California, for Defendant-Appellee.
CALLAHAN, Circuit Judge:
Taylor Scott appeals from the grant of summary judgment in favor of her former employer, Gino Morena Enterprises, LLC (“GME“). Scott sued GME alleging sexual harassment and retaliation under state law. The parties stipulated to the dismissal of Scott‘s state law claims and Scott‘s filing of an amended complaint asserting claims under Title VII of the Civil Rights Act of 1964. In granting GME‘s motion for summary judgment, the district court concluded that Scott‘s Title VII claims were time-barred and that Scott failed to meet her burden of establishing a basis for equitable tolling.
Under Title VII, an aggrieved person wishing to bring a claim against an employer must exhaust administrative remedies by filing a charge with the Equal Employment Opportunity Commission (the “EEOC“) or a qualifying state agency and receiving a right-to-sue notice.
We hold that the 90-day period referenced in
I. Factual Background
Scott began working for GME in April 2011 at a barbershop located on the United States Marine Corps Base Camp Pendleton, where she was responsible for prоviding customers with haircuts and selling hair products. Scott alleges Judy Lifesy (a GME Manager) and Katie Shepler (a GME General Manager) sexually harassed and retaliated against her. Specifically, Scott alleges that after she turned down Lifesy‘s sexual advances, Lifesy began treating Scott poorly. Examples of Lifesy‘s alleged abusive behavior include pushing Scott out of the way to ring up customers, turning down the temperature of the shop to 30 degrees, turning up the volume of the television in the shop, yelling at Scott in front of customers, throwing Scott‘s work tools in the sink, and blaming Scott for сomputer problems.
On November 13, 2013, while Scott was still employed by GME, she filed a charge with the California Department of Fair Employment and Housing (the “DFEH“) after speaking with DFEH representative Karen Rice. Scott‘s handwritten notes from her telephone conversation with Rice indicate “365 days” in the margin next to “Dept. of Fair Employment & Housing” and “w/in 30 days an investigator will call to determine if actionable.” The notes also indicate “statue [sic] of lim 300 Days” in the margin next to “EEOC - Federal coverage (DFEH will send their filing to the EEOC).” Six days later, the DFEH transferred the duty to investigate Scott‘s charge to the EEOC рursuant to a worksharing agreement between the DFEH and the EEOC.
On November 25, 2013, the DFEH issued a letter giving Scott notice of her right to sue. The letter stated the DFEH
Scott alleges that on December 22, 2013, approximately one month after she obtained her first right-to-sue letter, Lifesy issued Scott‘s first warning but described it as her second warning.1 Scott then decided to leave GME‘s employ.
Scott did not follow up on her first аdministrative charge until October 15, 2014, when she contacted Karen Rice from the DFEH and received contact information for the EEOC. That same day, Scott spoke with someone at the EEOC, who confirmed that Scott‘s complaint was being processed and gave Scott a claim number.
Scott hired a lawyer and filed a second charge with the DFEH on November 17, 2014. The second charge recounted Scott‘s allegations leading to her first DFEH charge, and then stated:
After I filed my complaint and received my right to sue letter, Lifesy and Shepler gave me a final warning (although this was the vеry first warning I received while I was employed by GM). After the unfair treatment, harassment and retaliation and the immediate warning after I filed my DFEH complaint, I was unable withstand [sic] any further retaliatory harassing and unfair treatment and left GMs [sic] employ knowing that they were setting me up for termination.
Scott received a second DFEH right-to-sue letter on the same date she filed the second charge. The letter stated that Scott‘s case was being closed because an immediate right-to-sue notice was requested and that the DFEH would take no further action on the charge. The letter аlso stated: “To obtain a federal Right to Sue notice, you must visit the U.S.
Equal Employment Opportunity Commission (EEOC) to file a complaint within 30 days of receipt of this DFEH Notice of Case Closure or within 300 days of the alleged discriminatory act, whichever is earlier.”
II. Procedural Background
On November 20, 2014, Scott filed a complaint in the Superior Court of California, County of Orange, asserting FEHA claims only. GME removed the case to federal court under the federal enclave doctrine. Scott filed a motion to remand the case to state court, arguing she asserted claims under state law only. The district court denied the motion.
On May 22, 2015, GME filed a motion for judgment on the pleadings, seeking dismissal of the FEHA claims as preempted by the federal enclave doctrine. After receiving that motion, Scott requested, and obtained, a right-to-sue notice from the
Before Scott filed an opposition to the motion for judgment on the pleadings, the parties filed a joint motion to allow Scott to file a First Amended Complaint (the “FAC“) and for GME to withdraw its motion for judgment on the pleadings. The proposed FAC included only federal claims under Title VII. The parties’ stipulation expressly preserved GME‘s right to assert defenses to Scott‘s federal claims, “specifically including any statute of limitations defenses.”
The district court granted the joint motion, and Scott filed her FAC.
GME then moved to dismiss the FAC, arguing the Title VII claims were time-barred. In denying the motion, the district court assumed, without deciding, that Sсott‘s Title VII claims were untimely but ruled that Scott might be entitled to equitable tolling and that the issue was not appropriate for resolution on the pleadings.
After the parties subsequently engaged in discovery on the issue of equitable tolling, GME filed a motion for summary judgment. The district court granted the motion, ruling that all of Scott‘s claims were time-barred and equitable tolling did not apply. Scott timely appealed.
III. Standard of Review
We review the grant of summary judgment de novo. Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th Cir. 2011). “[R]eview is governed by the same standard used by the trial court under
IV. Discussion
A. Scott‘s claims based on the first administrative charge are timely
There are effectively two limitations periods for Title VII claims. First, a claimant must exhaust administrative remedies by filing a charge with the EEOC or an equivalent state agency, like the DFEH, and receiving a right-to-sue letter.
Scott filеd her first DFEH charge on November 13, 2013. Twelve days later, she received a notice giving her the right to sue under the FEHA and stating that the charge “is dual filed with the [EEOC].”3 Scott did not file her complaint
granted the parties’ joint motion to allow Scott to amend her complaint to assert her Title VII claims.
There is no dispute that Scott timely filed her first administrative charge. At issue is the second limitations period, and the dispute turns on whether the 90-day pеriod to file a civil action begins when the plaintiff receives a right-to-sue notice from the EEOC or 180 days after the charge is filed with the EEOC, regardless of when the EEOC issues a right-to-sue notice. If it is the former, then Scott‘s claims are not time-barred. If it is the latter, Scott‘s time to file an action undoubtedly expired before she sued.
The operative provision of the statute states:
If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment practice.
The EEOC‘s duty to give notice is triggered in two instances: (1) the EEOC‘s dismissal of the administrative charge, or (2) the EEOC‘s failure to file a civil action or enter a conciliation agreement within 180 days from the filing of the charge (or the expiration of time periods referenced in provisions not at issue here).4 If either of these triggering events occurs, the EEOC “shall so notify the person aggrieved.”
The statute does not expressly state when the EEOC must give such notice. However, it clearly contemplates the giving of notice sometime after 180 days have expired from the date the charge is filed.5
also Ming W. Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2012) ¶ 16:151 (“To protect aggrieved individuals from undue delay, the EEOC must issue a right-to-sue letter upon the potential plaintiff‘s request anytime after 180 days after the charges were filed.“) (citing
The language from
The district court concluded that Scott‘s “90-day window in which to file suit” opened 180 days after Scott‘s claim was constructively filed with the EEOC—or, in other words, when Scott became eligible for a right-to-sue notice from the EEOC. To support its conclusion, the court did not cite the statute but, instead, relied on our unpublished decision in Rucker v. Sacramento County Child Protective Services, 462 F. App‘x 762, 763 (9th Cir. 2011) (“Once the DFEH letter issued, an EEOC charge was deemed filed; Rucker was entitled to a right-to-sue letter from the EEOC 180 days thereafter, or on December 15, 2008.“).7
Rucker, in turn, cites Stiefel v. Bechtel Corp., 624 F.3d 1240 (9th Cir. 2010). The court in Stiefel did not consider whether thе plaintiff timely filed suit within the 90-day
complaint with the EEOC nor receive an EEOC right-to-sue letter in order to file suit.“).8
Thus, while the issue in this case is whether Scott filed suit too late, the issue in Stiefel was essentially whether the claimant filed suit too early. Nonetheless, in generally describing the time limits for filing suit, the court in Stiefel observed that “[a]fter receiving an EEOC right-to-sue letter or becoming eligible for one by the Commission‘s inaction, a plaintiff generally has 90 days to file suit.” Stiefel, 624 F.3d at 1245 (emphasis added) (citing
A statement is dictum when it is made during the course of delivering a judicial opinion, but . . . is unnecessary to the decision in the case and [is] therefore not precedential. The line is not always easy to draw, however, for where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.
Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004) (internal quotation marks omitted; alterations in original)
(quoting Best Life Assur. Co. v. Comm‘r, 281 F.3d 828, 834 (9th Cir. 2002) and United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (Kozinski, J., concurring)); see also United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (holding that a prior opinion was not controlling because it did not involve the same issue).
As the sole authority supporting its statement that the 90-day window to sue begins after a claimant receives an EEOC right-to-sue letter or becomes eligible for one, Stiefel cited Surrell v. California Water Serv. Co., 518 F.3d 1097 (9th Cir. 2008). Stiefel, 624 F.3d at 1245. Although Surrell directly supports the actual holding in Stiefel—a plaintiff may file suit if entitled to receive a right-to-sue letter—it does not involve or address (even in dicta) the question of when the 90-day limitations period begins to run. See Surrell, 518 F.3d at 1105 (“[W]here, as here, a plaintiff is entitled to receive a right-to-sue letter from the EEOC, a plaintiff may proceed absent such a letter, provided she has received a right-to-sue letter from the appropriate state agency.“). In fact, contrary to GME‘s position, Surrell states that an aggrieved person has 90 days to file suit “[o]nce [the] person receives an EEOC right-to-sue letter.” Id. at 1104 (citing
Moreover, the court in Stiefel had no occasion to, and thus did not, consider
Because we conclude Stiefel is not binding on the question of when the 90-day limitations period begins, it is our task to confront the issue de novo. As discussed above,
The district court‘s conclusion is not only contrary to the language of the statute, it arguably would render right-to-sue notices meaningless. If the mere passage of time triggers not only the claimant‘s right to sue (the issue decided in Surrell and Stiefel) but also the deadline by which the claimant must sue (the district court‘s conclusion), the EEOC‘s giving of notice after 180 days becomes an idle act.
In urging the panel to follow Stiefel‘s dictum, GME argues there should not be two different dates for accrual of the cause of action and running of the statute of limitations. In support, GME cites Reiter v. Cooper, 507 U.S. 258, 267 (1993): “While it is theoretically possible for a statute to create a cause of action that accrues at one time for the purpose of calculating when the statute of limitations begins to run, but at another time for the purpose of bringing suit, we will not infer such an odd result in the absence of any such indication in the statute.” But Reiter by no means allows us to interpret a statute of limitations in a manner contrary to the statute‘s plain language.
Moreover, to hold that a plaintiff may sue when the EEOC has not acted on a charge for 180 days but is not required to do so until after receiving a right-to-sue notice is entirely consistent with the differing purposes of administrative exhaustion and the statute of limitations. The purpose of the exhaustion requirement “is ‘to provide an opportunity to reach a voluntary settlement of an employment discrimination dispute.‘” Jasch, 302 F.3d at 1094 (quoting Blank v. Donovan, 780 F.2d 808, 809 (9th Cir. 1986)). The purpose of a statute of limitations, on the other hand, “is to require diligent prоsecution of known claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved while evidence is reasonably available and fresh.” Statute of Limitations, Black‘s Law Dictionary (10th ed. 2014).
Although a 180-day waiting period provides a reasonable opportunity for voluntary settlement to occur, at that point the EEOC does not lose jurisdiction to continue investigating the matter and to possibly take action. Even when the EEOC takes more than 180 days to investigate, the employer, already on notice of the charge, will have a fair opportunity to take appropriate steps tо preserve evidence while it is reasonably fresh.9 Thus, allowing an aggrieved person to wait for the agency‘s investigation to conclude—even if it takes more than 180 days—furthers the purpose of the administrative exhaustion requirement without undermining the purpose of the 90-day limitations period.
GME also argues that “[a] Title VII plaintiff should not have an indefinite limitations period where the EEOC has not
with the EEOC. Id. at 1283–84. They both filed suit within 90 days after receiving their respective notices. Id. at 1284. The district court concluded that earlier notices to the appellants indicating that conciliation efforts had failed triggered the 90-day limitations period. Id. We reversed, holding that “the ninety-day period does not begin until the charging party receives a letter specifically informing him of his right to sue.” Id. at 1286.10
Critically, the court in Lynn clarified that its holding “does not imply that a plaintiff‘s lack of diligence in filing an action must be overlooked“:
[A]n aggrieved party may request a Right to Sue lettеr from the Commission any time after 180 days following the filing of the charge with the Commission. Particularly where the aggrieved party has consulted counsel and is aware of this right, it becomes inequitable at some point for the employee to delay filing suit. The complainant should not be permitted to prejudice the employer by taking advantage of the Commission‘s slowness in processing claims or by
procrastinating while being aware that the Commission intends to take no further action.
Lynn, 564 F.2d at 1287 (footnote omitted).
We have also recognized that a Title VII action may be barred by the doctrine of laches. In E.E.O.C. v. Alioto Fish Co., 623 F.2d 86, 88–89 (9th Cir. 1980), the court affirmed a grant of summary judgment where the EEOC filed suit 62 months after the employee filed the administrative charge and the employer showed actual prejudice in the form of evidence lost because of the delay.
GME‘s concern about an indefinitely-open limitations period is thus adequately addressed by existing doctrines and does not justify interpreting
In the alternative, GME argues the 90-day clock under
Accordingly, the district court erred in concluding that the 90-day clock for Scott to file suit began when she became eligible to receive a right-to-sue notice, rather than when she received her right-to-sue
B. Scott‘s claims based on the second administrative charge are untimely, but her claims may be based on acts occurring after her first charge under the continuing violations doctrine
Scott‘s FAC asserts two claims under Title VII: harassment and retaliation. Both claims are based, at least in part, on conduct that took place before Scott filed her first DFEH charge. To that extent, her claims are timely for the reasons stated in this opinion. But Scott‘s retaliation claim is based in part on later conduct. Specifically, Scott alleged in her second administrative charge that after she filed her first charge Lifesy and Shepler retaliated against her by issuing a sham warning in an effort to set her uр for termination.
Under Title VII, a charge must be filed with the DFEH (and thus “dual-filed” with the EEOC) within 300 days “after the alleged unlawful employment practice occurred.”
Scott does not dispute that her second administrative charge was untimely, and instead claims that it was unnecessary. She argues the continuing violations doctrine allows her to base her Title VII claims on conduct alleged to have occurred after she filed her first administrative charge—i.e., retaliation for filing the DFEH charge by issuing a bogus warning which led to Scott quitting her job.
Generally, a Title VII plaintiff may not base a claim on conduct occurring outside the statutory time period for filing a charge (i.e., 300 days before the charge is filed). However, under the continuing violations doctrine, acts that fall outside the statutory time period may be actionable. Nat‘l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002).
The applicability of the continuing violations doctrine depends on the nature of the plaintiff‘s claim. “A hostile work environment claim is composed оf a series of separate acts that collectively constitute one ‘unlawful employment practice.‘” Morgan, 536 U.S. at 117 (quoting
To the extent Scott‘s claims are based on discrete acts occurring after she filed her first DFEH charge—for example, retaliation for filing the first administrative charge—the district court did not err in granting summary judgment.12 But Scott
V. Conclusion
We hold that the 90-day period for an aggrieved person to file a civil action under Title VII begins when the person is given notice of the right to sue from the EEOC, not when the person beсomes eligible to receive such notice. We also hold that Scott‘s Title VII claims may be based on alleged acts occurring after she filed her first DFEH charge only to the extent such acts are part of a single unlawful employment practice. See Morgan, 536 U.S. at 117. We affirm the district court‘s grant of summary judgment only as to Scott‘s claims that are based on discrete discriminatory or retaliatory acts occurring after Scott filed her first DFEH charge. We otherwise reverse and remand. Costs are to be taxed against the appellee, GME.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.