Miller v. Maxwell's Intern. Inc.
| Citation | 991 F.2d 583 |
| Decision Date | 19 April 1993 |
| Docket Number | No. 90-16286,90-16286 |
| Parties | 61 Fair Empl.Prac.Cas. (BNA) 948, 61 Empl. Prac. Dec. P 42,196, 61 USLW 2649, 125 Lab.Cas. P 35,818, 25 Fed.R.Serv.3d 834, 1 Wage & Hour Cas.2d (BNA) 641 Phyllis MILLER, Plaintiff-Appellant, v. MAXWELL'S INTERNATIONAL INC., dba Maxwell's Plum, Debtor in possession; Carlo Galazzo, Gen. Mgt., Dino La Rosa; Don Bohn; Don Schupak, et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Phyllis Miller, pro se.
Robert D. Links, Dobbs, Berger, Molinari, Vannelli, Nadel & Links, San Francisco, CA, for defendants-appellees.
Samuel A. Marcosson, Atty., E.E.O.C., Washington, DC, for the amicus.
Appeal from the United States District Court for the Northern District of California.
Before FLETCHER, WIGGINS, and KOZINSKI, Circuit Judges.
Plaintiff/Appellant Phyllis Miller, proceeding pro se, filed sex and age discrimination claims in the district court under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1988), the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634 (1988), and the Equal Pay Act of 1963 (EPA), 29 U.S.C. § 206(d) (). She also asserted claims for retaliation and emotional distress. Miller appeals from the district court's dismissal of her claims as untimely (barred by statutes of limitations and laches) or for failure to state a claim.
Miller is pursuing sex and age discrimination claims against six defendants in their individual capacities: Donald Schupak, Dino La Rosa, Carlo Galazzo, Bui Duc Huy, Don Bohn, and Robert Stewart. Donald Schupak was CEO of Maxwell's International, the corporate owner of Maxwell's Plum restaurant, Miller's employer. La Rosa and Galazzo were both general managers of the restaurant; La Rosa was manager from Miller's initial hiring in 1982 until 1985, and Galazzo was manager from 1985 until Miller's third and final termination in 1986. Huy, Bohn, and Stewart were all lower level employees of Maxwell's Plum.
Miller alleges that when she was hired she was told that she would be promoted, but was not because of her sex and age, and that she worked as a manager of the "Terrace Garden" room but was not paid manager's wages. Miller also alleges that La Rosa reduced her hours and subjected her to a hostile work environment because of her sex and age and retaliated against her for complaining of discrimination to La Rosa. Miller further alleges that in retaliation for her having complained to her union about these actions, La Rosa fired her in July, 1984.
After her firing, Miller filed charges with the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB). NLRB proceedings resulted in Miller's reinstatement as a Maxwell's Plum employee. Thereafter, Miller alleges that Galazzo harassed her and denied her a full time schedule in retaliation for her previous EEOC and NLRB charges. She filed a second NLRB charge on October 30, 1985. Miller alleges that Huy and Bohn gave her notice that she had been fired a second time on November 8, 1985, and that Stewart and Galazzo issued a formal termination notice the next day. Miller also alleges that Galazzo, Bohn, and Stewart refused to write her letters of recommendation in retaliation for her earlier charges and because of sex and age discrimination. These allegations led to a second EEOC charge filed on November 13, 1985.
Sometime in March, 1986, Miller alleges that she was reinstated but then terminated for the third and final time because of retaliatory motives and sex and age discrimination. Miller also alleges that a lawsuit filed by Galazzo against her in March, 1986, constituted malicious prosecution, and she alleges that Galazzo and Schupak denied her unemployment benefits sometime in the Spring of 1986.
After receiving her right-to-sue letter from the EEOC, Miller timely filed an action in the district court on April 24, 1987. Proceeding pro se, Miller was given four opportunities to allege facts that stated a claim against the defendants. After her third amended complaint, the district court finally dismissed Miller's claims on May 18, 1990. The district court then erroneously granted Miller an extension of time to file a motion to alter or amend the judgment. Miller filed her motion on June 27, 1990, and the district court denied it on August 14, 1990.
The district court dismissed Miller's claims as untimely (barred by statutes of limitations and laches) or for failure to state a claim. In addition, Miller's appeal raises a jurisdictional issue. These are all questions of law or at least mixed questions of law and fact and are reviewed de novo. See, e.g., 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); In re Hawaii Federal Asbestos Cases, 871 F.2d 891, 893 (9th Cir.1989) ().
The first issue we must address is the jurisdictional question raised by Miller's failure to file a timely notice of appeal or motion to extend the appellate filing deadline. See Fed.R.App.P. 4(a)(1), (5). The district court entered its judgment on May 23, 1990. Thus, Miller's notice of appeal should have been filed by June 22, 1990, thirty days after the entry of judgment, or a motion to extend the appellate filing deadline should have been filed by July 23, 1990, within thirty days of the expiration of the appellate filing deadline. Miller did not file her notice of appeal until August 30, 1990.
Instead of filing a notice of appeal, Miller filed a motion for an extension of time to request alteration or amendment of the judgment on June 5, 1990. See Fed.R.Civ.P. 59(e). Although the district court lacked the authority to do so, see Fed.R.Civ.P. 6(b), it issued an order on June 6, 1990, granting the motion. Miller relied on this erroneous ruling and waited until after the resolution of her Rule 59(e) motion before bringing her appeal. If the district court had not granted Miller's motion on June 5, 1990, she still would have had ample time to file her appeal by the June 22, 1990, deadline.
If the notice of appeal is the only deadline Miller has missed, it is clear that Miller is entitled to equitable relief under the "unique circumstances" doctrine recognized in Barry v. Bowen, 825 F.2d 1324, 1329 (9th Cir.1987). Even the defendants concede that Barry allows equitable tolling of the appellate filing deadline if (1) a district court took action that gave the parties good reason to believe that the appellate filing deadline was extended and (2) the time period for filing an appeal had not yet lapsed at the time of the district court's action. The district court's grant of Miller's motion for an extension of time on June 6, 1990, meets both of the Barry criteria for application of the unique circumstances doctrine.
However, the defendants argue that the appellate filing deadline is not the only deadline that Miller missed. When the district court erroneously granted Miller's motion for an extension of time on June 6, 1990, the applicable deadline was extended twenty days, or to June 26, 1990. Miller's Rule 59(e) motion was not filed until June 27, 1990, twenty-one days after the court granted the extension. Thus, the defendants argue that Miller's Rule 59(e) motion was one day late and that this second missed deadline is not excused under the Barry doctrine.
However, the defendants overlook the fact that the timeliness of a Rule 59(e) motion hinges on the date of service by the movant, not the date of filing with the district court. See Fed.R.Civ.P. 59(e). Service by mail is complete at the time of mailing. Fed.R.Civ.P. 5(b). Miller mailed her Rule 59(e) motion to the court and to opposing counsel on June 25, 1990, which was before the deadline of the erroneously granted extension. Miller's Rule 59(e) motion was therefore timely under the limits set by the Barry doctrine, and we may exercise jurisdiction.
The district court dismissed Miller's ADEA and EPA claims as time-barred because the court concluded that Miller did not sufficiently allege willful conduct, which would have entitled her to a more generous three-year statute of limitations. See 29 U.S.C. § 255(a) (1988) (); 29 U.S.C. § 626(e) (1988) (). We conclude that Miller sufficiently alleged willful violations of the ADEA but not of the EPA. Miller alleged that La Rosa verbally harassed her in an intentional effort to torment her and that La Rosa and Galazzo willfully belittled her because of her age in front of customers and other employees. Moreover, Miller alleged a continuing pattern of ADEA violations that took place after she had filed her EEOC charges and the defendants knew their conduct was being challenged under the law. These allegations are enough, if proven, to establish "reckless disregard" for the law. See Brock v. Richland Shoe Co., 799 F.2d 80, 83 (3d Cir.1986) (quoting TWA v. Thurston, 469 U.S. 111, 128, 105 S.Ct. 613, 625, 83 L.Ed.2d 523 (1985)), aff'd, McLaughlin v. Richland Shoe Co., 486 U.S. 128, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988). However, none of the alleged EPA violations was willful, and none of them took place after the EEOC charges were filed.
The district court barred the remainder of Miller's ADEA claims under the equitable defense of laches. This was error because the doctrine of laches is inapplicable when...
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