Scott v. Gino Morena Enters., LLC

• Decision Date: 27 April 2018
• Docket Number: No. 16-56200,16-56200
• Citation: 888 F.3d 1101
• Parties: Taylor SCOTT, an individual, Plaintiff–Appellant, v. GINO MORENA ENTERPRISES, LLC, a California limited liability company; Does, 1–50, inclusive, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

888 F.3d 1101

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, Ninth Circuit.

Argued and Submitted February 7, 2018, Pasadena, California

Filed April 27, 2018

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.

Before: Consuelo M. Callahan and Jacqueline H. Nguyen, Circuit Judges, and Joseph F. Bataillon,^* District Judge.

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. 42 U.S.C. § 2000e-5. The primary issue in this appeal is whether, under 42 U.S.C. § 2000e-5(f)(1), the 90 –day period for filing a civil action begins when the aggrieved person becomes eligible to receive a right-to-sue notice from the EEOC or when the person is actually given a right-to-sue notice.

We hold that the 90–day period referenced in 42 U.S.C. § 2000e-5(f)(1) begins when the aggrieved person is given notice of the right to sue by the EEOC. We also hold that Scott's Title VII claims may be based on alleged acts occurring after she filed her first administrative charge only to the extent such acts are part of a single unlawful employment practice. See Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). We thus affirm in part and reverse in part.

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 providing 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 computer 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 pursuant 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 had closed Scott's case "for the following reason: Administrative Dismissal—Waived to Another Agency." The right-to-sue letter also explained that: (1) a civil action under California's Fair Employment and Housing Act (the "FEHA") "must be filed within one year from the date of this letter"; (2) Scott's DFEH charge "is dual filed with the [EEOC]" and Scott "ha[s] a right to request EEOC to perform a substantial weight review of [DFEH's] findings ... within fifteen (15) days of ... receipt of this notice"; (3) "[a]lthough DFEH has concluded that the evidence and information did not support a finding that a violation occurred, the allegations and conduct at issue may be in violation of other laws"; and (4) Scott "should consult an attorney as soon as possible regarding any other options and/or recourse [she] may have regarding the underlying acts or conduct." (Emphasis omitted). Scott testified that she read the DFEH right-to-sue letter.

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 administrative 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 very 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 also 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 EEOC (associated with her first administrative charge). The notice, which was issued on June 3, 2015, stated that "[m]ore than 180 days have passed since the filing of this charge" and "[t]he EEOC is terminating its processing of this charge." Id. The notice also stated that Scott's "lawsuit under Title VII ... must be filed in a federal or state court WITHIN 90 DAYS of ... receipt of this notice ; or [the] right to sue based on this charge will be lost."

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 Scott'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 Federal Rule of Civil Procedure 56(c)." Adcock v. Chrysler Corp. , 166 F.3d 1290, 1292 (9th Cir. 1999). The court "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 substantive law." Id.

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. 42 U.S.C. § 2000e-5(e)(1) ; Jasch v. Potter , 302 F.3d 1092, 1094 (9th Cir. 2002). The charge must be filed within 180 days after the allegedly unlawful employment practice occurred.² 42 U.S.C. §...