Carrasco v. City of Monterey Park

• Citation: 18 F.Supp.2d 1072
• Decision Date: 02 September 1998
• Docket Number: No. CV 97-0287 DDP (SHx).,CV 97-0287 DDP (SHx).
• Parties: Ivan J. CARRASCO, Plaintiff, v. CITY OF MONTEREY PARK, et al., Defendants.
• Court: U.S. District Court — Central District of California

18 F.Supp.2d 1072

Ivan J. CARRASCO, Plaintiff, v. CITY OF MONTEREY PARK, et al., Defendants.

No. CV 97-0287 DDP (SHx).

United States District Court, C.D. California.

September 2, 1998.

Leo James Terrell, Leo J. Terrell Law Offices, Beverly Hills, CA, for Ivan J. Carrasco.

Ivan J. Carrasco, Diamond Bar, CA, pro se.

Peter Jay Brown, Liebert Cassidy & Frierson, Los Angeles, CA, for City of Monterey Park, Monterey Park Fire Dept.

ORDER

GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

PREGERSON, District Judge.

This matter comes before the Court on the defendants' motion for summary judgment. The defendants contend that the action is barred by the 90-day statute of limitations governing actions for employment discrimination under Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-5(f)(1). Having considered the contentions of the parties, the declarations submitted in favor of and in opposition to the motion, and the testimony of the plaintiff in an evidentiary hearing under Federal Rule of Civil Procedure 43(e), the Court concludes that no genuine issue of fact remains as to whether the plaintiff's claim accrued within the limitations period. The motion for summary judgment is therefore granted.

I. BACKGROUND

Plaintiff Ivan Carrasco ("Carrasco") applied to be a Monterey Park firefighter on April 2, 1993. He alleges that he received the highest score on the entrance examination. Among the six finalists for the position, two were tied for the second highest score and three were tied for the third highest score. After the final six candidates were interviewed, three were chosen as firefighters. Carrasco alleges that three non-Hispanics were chosen, and that he was the only Hispanic among the six finalists.

The final hiring decision was made on June 8, 1993. On June 9, 1993, Carrasco filed a complaint with the California Department of Fair Employment and Housing ("DFEH"). The DFEH forwards charges filed with it to the federal Equal Employment Opportunity Commission ("EEOC") under a work-sharing agreement between the agencies. See 1 Wrongful Employment Termination Practice § 2.6 (CEB 1997).

On September 30, 1996, the EEOC issued a right-to-sue letter to Carrasco. This letter is attached to the complaint as Exhibit C. The complaint does not state when Carrasco received the letter. The City of Monterey Park received the letter on October 2, 1996. (Randal Decl. ¶ 3.)

Carrasco lodged the complaint with the clerk of this Court on January 6, 1997, along with an application to proceed in forma pauperis. His application was denied on January 17, 1997, and the case was closed. (Order Denying Leave to Proceed In Forma Pauperis, entered Jan. 17, 1997.) Carrasco paid the filing fee on January 30, 1997, causing the case to be re-opened with the same case number.

The contentions underlying this motion were before the Court on December 15, 1997 in the form of a motion to dismiss. At the hearing, the Court notified the parties that the motion would be converted to one for summary judgment based on a factual dispute as to the date that the plaintiff received a right-to-sue letter from the EEOC. The motion for summary judgment was heard on January 26, 1998. The Court granted the plaintiff's application to continue the motion to allow further discovery under Federal Rule of Civil Procedure 56(f).

II. DISCUSSION

A. Standard for Summary Judgment

Federal Rule of Civil Procedure 56(c) provides that a motion for summary judgment shall be granted if the moving party establishes that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Such a showing can be made by an affirmative demonstration in affidavits or declarations by a moving party who bears the burden of proof on the controverted issue at trial. In a circumstance where the non-moving party has the burden of proof at trial, summary judgment is appropriate if the non-moving party fails to come forward with any evidence which would create a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The Court must look to the substantive law at issue to determine which facts are "material." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether a dispute is "genuine," the court must determine whether a reasonable jury, applying the standard of proof required by the applicable substantive law, could return a verdict for the non-moving party. Id. at 248-50, 106 S.Ct. 2505. Where, as here, the standard is preponderance of the evidence, the "mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient" to defeat summary judgment. Id. at 252, 106 S.Ct. 2505.

It is a matter of some disagreement among federal courts which party has the burden of proof on compliance with the statute of limitations. See Williams v. Enterprise Leasing Co. of Norfolk/Richmond, 911 F.Supp. 988, 993 (E.D.Va.1995) (discussing absence of authority on burden to demonstrate when plaintiff received right-to-sue letter). It is clear that the burden is on the plaintiff to plead the prerequisites for suit under Title VII. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir.1988). Compliance with the 90-day statute of limitations is one of these prerequisites. Courts however, have also treated the 90-day statute of limitations as an affirmative defense to be pleaded and proved by the defendant. See Williams, 911 F.Supp. at 992; Fed. R.Civ.P. 8(c).

In Williams, the district court concluded that after the defendant has raised the statute of limitations as an affirmative defense, the burden shifts to the plaintiff to prove when he received the right-to-sue letter. See Williams, 911 F.Supp. at 993. The court based this conclusion on the plaintiff's unique access to the evidence regarding his own receipt of the letter.

The Court finds Williams persuasive on this point. In order to survive summary judgment, the plaintiff must produce evidence to show that the right-to-sue letter arrived at his address within the limitations period. If the plaintiff raises a genuine issue of fact as to this question, the statute of limitations issue must be submitted to the jury. See Witt v. Roadway Express, 136 F.3d 1424, 1429 (10th Cir.1998) (reversing grant of summary judgment where plaintiff rebutted five-day presumptive receipt with declaration stating that he received it later; credibility of the plaintiff's testimony was matter for the jury).

Here, the plaintiff has not come forward with direct evidence regarding when the letter arrived at his address. The defendants have presented circumstantial evidence in the form of the date on which the EEOC noted the mailing of the letter, and the date three days later when the defendants received the letter. The plaintiff sought, and the Court granted, additional time to discover evidence to controvert the mailing date of the letter. See Fed.R.Civ.P. 56(f).

B. Application of the 90-Day Limitations Period

Title VII provides that the EEOC shall give claimants notice of the EEOC's decision not to take action on a complaint, and that "within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge." 42 U.S.C. § 2000e-5(f)(1). The 90-day period runs from the time the claimant receives the right-to-sue letter, not from the time the EEOC sends it. See 29 C.F.R. § 1601.28(e)(1) (1997). The claimant is deemed to have received the letter when it arrives in the mail, regardless of whether the claimant has actually received it personally. Ortez v. Washington County, 88 F.3d 804, 807 (9th Cir.1996).

For statute of limitations purposes, a complaint is deemed "filed" when tendered to the clerk, even if the clerk refuses to officially file it. Loya v. Desert Sands Unified School Dist., 721 F.2d 279, 281 (9th Cir.1983) (holding that clerk's refusal to file based on violation of local rules does not provide basis for finding Title VII claim time-barred). Here, the complaint was first lodged with the clerk on January 6, 1997 as part of Carrasco's application to proceed in forma pauperis. The complaint was thus in the actual or constructive possession of the clerk on January 6, 1997. See id.; Toliver v. County of Sullivan, 841 F.2d 41, 42 (2d Cir.1988) (complaint deemed filed at time in forma pauperis application filed where in forma pauperis application was granted).

Using a filing date of Monday, January 6, 1997, and allowing for expiration of the limitations period on Saturday or Sunday when the clerk's office was closed, the action was timely filed if it accrued on or after Sunday, October 6, 1996. See Ortez, 88 F.3d at 807; Fed.R.Civ.P. 6(a) (where time for filing expires on a weekend, time is extended to Monday).

Thus, if there is a genuine issue of fact that would allow a reasonable jury to find that the letter arrived at Carrasco's house on Sunday, October 6, 1996 or later, then the defendants' motion for summary judgment must be denied.

1. Direct Evidence Regarding Receipt of the Letter

Carrasco stated in declaration and in live testimony that he was away from home during the week of October 1, 1996, and that when he returned home on Tuesday, October 8, 1996, he read the right-to-sue letter for this first time. (Carrasco Decl. (Jan. 12, 1996) ¶ 14.) Because he was away from home, however, he conceded on cross-examination that he has no personal knowledge as to whether the letter arrived in his mail before or after Sunday, October 6, 1996.

2. Circumstantial Evidence Plus Legal Presumption of Receipt Within A Reasonable Time After Mailing

As noted above, the defendants have presented evidence that the EEOC mailed the letter on September 30, 1996, and that the defendants received their copy on October 2, 1996. (See Randal Decl. ¶ 3.)

The Supreme Court has...