Scholar v. Pacific Bell

• Citation: 963 F.2d 264
• Decision Date: 30 April 1992
• Docket Number: No. 90-15939,90-15939
• Parties: 58 Fair Empl.Prac.Cas. (BNA) 1248, 58 Empl. Prac. Dec. P 41,440 Aurelia SCHOLAR, Plaintiff/Appellant, v. PACIFIC BELL, a Pacific Telesis Company, a corporation, Defendant/Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 264

963 F.2d 264

58 Fair Empl.Prac.Cas. (BNA) 1248,

58 Empl. Prac. Dec. P 41,440

Aurelia SCHOLAR, Plaintiff/Appellant, v. PACIFIC BELL, a Pacific Telesis Company, a corporation Defendant/Appellee.

No. 90-15939.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 9, 1991.

Decided April 30, 1992.

Ellen Lake, Oakland, Cal., for plaintiff/appellant.

Margaret deB. Brown, Sarah J. Diehl, Mary Lu Christie, Pacific Bell, San Francisco, Cal., for defendant/appellee.

Appeal from the United States District Court for the Northern District of California.

Before: TANG and TROTT, Circuit Judges, and BURNS, ^* Senior District Judge.

JAMES M. BURNS, Senior District Judge:

Ms. Scholar appeals the district court's grant of summary judgment to Pacific Bell and dismissal of her claims for relief arising from alleged discriminatory employment We have jurisdiction under 28 U.S.C. § 1291 (1988).

                practices by Pacific Bell, 1990 WL 364626.   Ms. Scholar also appeals the district court's denial of her motion for leave to file a second amended complaint
                

BACKGROUND

Ms. Scholar was an employee of Pacific Bell and its predecessor entity for approximately 17 years. She was employed in nonsalaried, nonmanagement positions governed by collective bargaining agreements. In 1980 Ms. Scholar's name was included in Pacific Bell's "Ready Now" Binder, a list of nonsalaried employees selected by their supervisors as candidates for promotion to management as positions became available. Although Ms. Scholar was never promoted to a management position during her long tenure with Pacific Bell, she does not challenge Pacific Bell's employment practices prior to the events triggering this dispute.

In 1986 employees listed in the Ready Now Binder were reevaluated. Ms. Scholar's name was removed from the binder in 1987 following a fresh performance evaluation by her immediate supervisor; review of her employment record and current evaluation by the district's five engineering managers; and approval of the reviewers' decision by Arthur Scholar, District Manager and husband of Ms. Scholar. In 1988 Ms. Scholar took disability retirement. On February 2, 1989, she brought this action against Pacific Bell to recover back pay and to obtain contract damages and reinstatement to the management position she believes she should have had based on merit.

The district court granted Pacific Bell's motion for summary judgment on the grounds that federal labor law preempted Ms. Scholar's claim for breach of an implied-in-fact employment contract under state law and that no evidence of disparate treatment was established. The district court also denied Ms. Scholar's motion for leave to file a second amended complaint on the grounds that adding a claim of racial discrimination pursuant to 42 U.S.C. § 1981 (1988) would be repetitive of the claims already stated and, therefore, futile.

STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). The appellate court's review is governed by the same standard used by the trial court under Fed.R.Civ.P. 56(c). Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986).

A district court's decision to deny leave to amend a pleading is reviewed for abuse of discretion. Klamath-Lake Pharmaceutical Ass'n v. Klamath Medical Serv. Bureau, 701 F.2d 1276, 1292 (9th Cir.), cert. denied, 464 U.S. 822, 104 S.Ct. 88, 78 L.Ed.2d 96 (1983).

DISCUSSION

Although the district court did not grant summary judgment to respondent based on Ms. Scholar's failure to file her cause of action within the statutory time limit, we can affirm "on any ground supported by the record, provided the parties have had the opportunity to discuss it in their briefs." Paskaly v. Seale, 506 F.2d 1209, 1211 n. 4 (9th Cir.1974). See also Lakeview Dev. Corp. v. City of South Lake Tahoe, 915 F.2d 1290, 1299 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2890, 115 L.Ed.2d 1055 (1991). Ms. Scholar's failure to file her Title VII action within the prescribed statutory period was raised in Pacific Bell's motion for summary judgment and presented to this court in the parties' briefs; counsel also devoted substantial time to the topic in oral argument before this court. We, therefore, affirm the district court's grant of summary judgment to respondent on the grounds that Ms. Scholar's failure to file her Title VII claim within the time limits prescribed by statute bars this action.

When the Equal Employment Opportunity Commission (EEOC) dismisses a claim, it is required to notify claimant and to inform claimant that she has 90 days to bring a civil action. 42 U.S.C. § 2000e-5(f)(1) (1988). ¹ The requirement for filing a Title VII civil action within 90 days from On October 26, 1988, EEOC sent Ms. Scholar a letter by certified mail informing her it had dismissed her claim and that she had 90 days from receipt of the letter to file a civil action. EEOC's "right-to-sue" letter was received at Ms. Scholar's house on November 1, 1988, and the return receipt was signed by her daughter. Ms. Scholar contends she did not personally see the letter until a few days later; the 90-day period did not begin to run until she personally received the letter; and, therefore, the civil action she filed February 2, 1989, was timely. For these reasons, Ms. Scholar argues we should return her case to the district court for a full trial. We reject this argument.

                the date EEOC dismisses a claim constitutes a statute of limitations.  Edwards v. Occidental Chem.  Corp., 892 F.2d 1442, 1445 (9th Cir.1990).   If claimant fails to file within 90-day period, the action is barred accordingly.  Id
                

This court has not specifically addressed the issue of timeliness in filing a Title VII civil action under the fact scenario at hand ²; however, we agree with the reasoning of the Fourth, Fifth, and Eleventh Circuits. ³ See Harvey v. City of New Bern Police Dep't., 813 F.2d 652, 653-54 (4th Cir.1987) (court held 90-day period began when EEOC's right-to-sue letter was received by claimant's wife even though claimant did not learn of letter until six days later); Espinoza v. Missouri Pacific R.R. Co., 754 F.2d 1247, 1248-50 (5th Cir.1985) (court held 90-day period began when EEOC's right-to-sue letter was received by claimant's wife even though claimant did not learn about the letter until he returned from out of town eight days later); and Law v. Hercules, Inc., 713 F.2d 691, 692-93 (11th Cir.1983) (court held 90-day period began when claimant's 17-year-old son signed return receipt for EEOC's right-to-sue letter in spite of claimant's contention he did not see the letter until one or two days later).

The language of the statute establishes the 90-day period as running from the "giving of such notice" rather than from the date claimant actually "receives" notice in hand. 42 U.S.C. § 2000e-5(f)(1). See also Espinoza, 754 F.2d at 1248-50. Ms. Scholar was given notice when the right-to-sue letter sent certified mail by EEOC was received and signed for by Ms. Scholar's daughter November 1, 1988, at Ms. Scholar's place of residence; thus, expiration of the 90-day period was January 30, 1989. Ms. Scholar acknowledges she read the letter a few days after it was delivered to her home and that she understood its contents. Ms. Scholar filed this civil action February 2, 1989, three days after the statute of limitations expired.

A statute of limitations is subject to the doctrine of equitable tolling; therefore, relief from strict construction of a statute of limitations is readily available in extreme cases and gives the court latitude in a case-by-case analysis. See Harvey, 813 F.2d at 654. See also Espinoza, 754 F.2d at 1250. The equitable tolling doctrine has been applied by the Supreme Court in certain circumstances, but it has been applied sparingly; for example, the Supreme Court Ms. Scholar contends she learned of the letter some time between November 8 and November 15, 1988, a few days after her daughter signed for it. The only corroborating evidence presented was the statement by her psychiatrist as to when she told him about the letter. As the Eleventh...