Nelmida v. Shelly Eurocars, Inc.

• Decision Date: 11 December 1996
• Docket Number: No. 95-16334,95-16334
• Citation: Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380 (9th Cir. 1996)
• Parties: 73 Fair Empl.Prac.Cas. (BNA) 1313, 71 Empl. Prac. Dec. P 44,995, 97 Cal. Daily Op. Serv. 3106, 97 Daily Journal D.A.R. 5436 Rachael C. NELMIDA, Plaintiff-Appellant, v. SHELLY EUROCARS, INC., a Hawaii Corporation, dba BMW of Honolulu, Ltd.; Shelly Automotive Management, Inc., a Hawaii corporation, dba Shelly Motors, Inc.; Charles Gates, individually and in his capacity as a Service Manager and Supervisor at Shelly Eurocars, Inc.; Charles Miller, individually and in his capacity as a Dispatcher at Shelly Eurocars, Inc.; Scott Dempsey, individually and in his capacity as Service Writer at Shelly Eurocars, Inc.; John Does 1-10; Jane Does 1-10; Doe Business Entities 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Unincorporated Organizations 1-10; Doe Governmental Agencies 1-10, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 380

112 F.3d 380

73 Fair Empl.Prac.Cas. (BNA) 1313,

71 Empl. Prac. Dec. P 44,995,

97 Cal. Daily Op. Serv. 3106,

97 Daily Journal D.A.R. 5436

Rachael C. NELMIDA, Plaintiff-Appellant, v.SHELLY EUROCARS, INC., a Hawaii Corporation, dba BMW of Honolulu, Ltd.; Shelly Automotive Management, Inc., a Hawaii corporation, dba Shelly Motors, Inc.; Charles Gates individually and in his capacity as a Service Manager and Supervisor at Shelly Eurocars, Inc.; Charles Miller individually and in his capacity as a Dispatcher at Shelly Eurocars, Inc.; Scott Dempsey, individually and in his capacity as Service Writer at Shelly Eurocars, Inc.; John Does 1-10; Jane Does 1-10; Doe Business Entities 1-10Doe Corporations 1-10; Doe Partnerships 1-10; Doe Unincorporated Organizations 1-10; Doe Governmental Agencies 1-10, Defendants-Appellees.

No. 95-16334.

United States Court of Appeals Ninth Circuit.

Submitted Dec. 11, 1996. ^*

Submission Deferred Feb. 3, 1997.

Re-Submitted March 21, 1997.

Filed April 29, 1997.

Elizabeth Jubin Fujiwara and Cara MeiKam Ching, Honolulu, HI, for plaintiff-appellant.

Richard M. Rand, Torkildson, Katz, Jossem, Fonseca, Jaffe, Moore & Hetherington, Honolulu, HI, for defendants-appellees.

Appeal from the United States District Court for the District of Hawaii, David A. Ezra, District Judge, Presiding.D.C.No. CV-94-00594-DAE.

Before: FLETCHER, WIGGINS and T.G. NELSON, Circuit Judges.

T.G. NELSON, Circuit Judge:

OVERVIEW

Rachael C. Nelmida brought suit in Hawaii state court against defendantsShelly Eurocars, Inc., dba BMW of Honolulu, Ltd.; Charles Gates; Charles Miller; and Scott Dempsey alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., as well as violations of state law.The defendants removed the case to federal district court, then filed a motion for summary judgment on the Title VII claims.The district court granted summary judgment on the Title VII claims and remanded the remaining claims to state court.We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.We affirm.

FACTS AND PROCEDURAL HISTORY

On January 20, 1993, Nelmida resigned her position at BMW of Honolulu.Approximately nine months later, on October 15, 1993, Nelmida filed a charge of race and sex discrimination against defendants with the Equal Employment Opportunity Commission("EEOC").On March 11, 1994, after completing an investigation into Nelmida's charges, the EEOC's investigator sent a pre-determination letter to Nelmida informing her that their investigation was complete and inviting her to provide further documentation and evidence supporting her charge of discrimination, if in fact there was such evidence, within ten days.The letter also informed Nelmida that a determination letter ("right-to-sue notice") would be sent to her by certified mail ¹ and that it was her responsibility to claim that letter.

On March 18, 1994, the EEOC sent a right-to-sue notice to Nelmida, by certified mail, to 99-055 Moanalua Road, Aiea, Hawaii 96701, the address given by Nelmida at the time she filed the charges with the EEOC.The Moanalua address was the address of her parents, her two sisters and her brother.

Nelmida was not living at the Moanalua address in March 1994.Instead, from around March 1993 to December 1994, Nelmida lived at a friend's apartment in Kalihi.During this period, Nelmida spoke to her parents about once a month.They did not have the Kalihi address and Nelmida does not remember whether they had her phone number.Although Nelmida did receive mail at the Kalihi address, her bills were going to the Moanalua address.Nelmida admits that she often does not receive mail sent to her at the Moanalua address because it gets lost or because no one tells her about it.Nelmida also admits that her family occasionally lies to her about whether mail has been received at the Moanalua address, and that she decided to have communications with her attorney sent to the Kalihi address rather than the Moanalua address because she wanted to make sure she got it.Nelmida did not inform the EEOC that she was no longer living at the Moanalua address, nor did she give them the Kalihi phone number or address.

On approximately March 15, 1994, Nelmida left Hawaii to help her cousin move to Las Vegas.She told her parents that she was going to Las Vegas and that she would return in about one month.She told her parents that she would be in the California Hotel for four days and then in her cousin's apartment.She also told the family members living at the Moanalua address to look out for mail addressed to her.Nelmida did not inform the EEOC that she would be leaving the island for approximately a month.

Nelmida returned to Hawaii on March 31, 1994.She went to her parents' home on April 1, 1994, but did not ask about any mail or messages for her.A few days later when she returned to her parents' home, her sister Elissa told her that she had received some mail.Nelmida and her sister searched the house, but could not find the mail.Nelmida believed that the lost mail was the right-to-sue notice.

Thereafter, Nelmida found the pre-determination letter, dated March 11, 1994, which summarized the evidence collected by the EEOC investigation and invited Nelmida to submit any further arguments, explanations or supporting evidence within ten days of the date of the letter.

Realizing from the pre-determination letter that the EEOC had dismissed her charges, and believing that the right-to-sue notice was the lost piece of mail, Nelmida telephoned the local EEOC office on April 6, 1994.Nelmida told the EEOC office that she had not received the right-to-sue notice.The EEOC confirmed the Moanalua address with Nelmida and mailed a copy of the right-to-sue notice to Nelmida on April 7, 1994.Nelmida received the copy of the notice on April 8, 1994.

The envelope containing the original right-to-sue notice mailed to Nelmida on March 18, 1994, has three dates written upon it: "3/19" in handwriting; "Mar 25 1994" stamped; and "Apr 03 1994" stamped with RTN handwritten next to the date.This envelope was returned to the EEOC unopened, as unclaimed mail, on April 11, 1994.²

On July 6, 1994, ninety days after she received the copy of the right-to-sue notice, but approximately one hundred ten days after the original right-to-sue notice was mailed to her by the EEOC, Nelmida filed a complaint in Hawaii state court.The complaint alleges violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., as well as violations of state law, by both the individual defendants and BMW.The defendants removed the case to federal district court, then filed a motion for summary judgment on the Title VII claims.The district court granted the summary judgment motion, holding that Nelmida failed to comply with the ninety-day limitation period within which to file a Title VII civil action.Because all federal claims were resolved, the district court remanded the remaining state law claims to Hawaii state court.Nelmida timely appeals.

STANDARD OF REVIEW

We review a grant of summary judgment de novo.Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130(9th Cir.1994).We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.Id.The court must not weigh the evidence or determine the truth of the matter, but only determine whether there is a genuine issue for trial.Id. at 1131.

DISCUSSION

A.Timely Filing of Civil Action

Before a claimant can file a Title VII civil action, she must file a timely charge of discrimination with the EEOC.SeeZipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234(1982).If the EEOC dismisses the charge, a claimant has ninety days to file a civil action.42 U.S.C. § 2000e-5(f)(1).This ninety-day period is a statute of limitations.Scholar v. Pacific Bell, 963 F.2d 264, 266-67(9th Cir.1992).Therefore, if a claimant fails to file the civil action within the ninety-day period, the action is barred.Id. at 267.

Neither this circuit, nor any other circuit, has determined when the ninety-day period begins to run under the fact scenario in the present case.However, a review of the precedent in this circuit, as well as cases from the other circuits, is informative.

In Scholar v. Pacific Bell, 963 F.2d 264, 267(9th Cir.1992), the EEOC right-to-sue notice, sent by certified mail to the claimant's place of residence, was received and signed for by the claimant's daughter on November 1, 1988.However, the claimant did not read the notice until a few days after it was delivered to her home.We held that the claimant's civil action, filed on February 2, 1989, was barred by the statute of limitations.Id."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."Id.(citing42 U.S.C. § 2000e-5(f)(1)andEspinoza v. Missouri Pac. R.R. Co., 754 F.2d 1247, 1248-50(5th Cir.1985)).Notice was given when the right-to-sue notice was received and signed for by the claimant's daughter.Id.The civil suit was filed more than ninety days after the notice was given; therefore, we held that the civil action was time-barred.Id. at 268-72.

In St. Louis v. Alverno College, 744 F.2d 1314, 1315(7th Cir.1984), the claimant never received the right-to-sue notice.The notice was mailed to the address that claimant had given to the EEOC, but was returned to the EEOC because the claimant no longer lived at that address.He had moved from the address several years prior, but had not formally informed the EEOC of his change of address.Id.Approximately nine months after the notice was sent to the claimant, an attorney contacted...