United States District Court, D. Nevada
ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT (ECF
P. GORDON UNITED STATES DISTRICT JUDGE
February 24, 2017, plaintiff Sam Lee filed his initial
complaint in this case, alleging negligent supervision and
violations of Title VII and Nevada anti-discrimination laws
by defendant Venetian Resort Casino, LLC (Venetian). Venetian
moves to dismiss, arguing Lee's Title VII claim is
time-barred because he filed his complaint more than ninety
days after receiving a Notice of the Right to Sue letter from
the Equal Employment Opportunity Commission (EEOC) in
October, 2016. Venetian also contends that because Lee's
federal claim is time-barred, the court has no jurisdiction
over his state law claims. Lee responds that his attorney
never received a copy of the right-to-sue letter, and he
timely filed the case upon request and receipt of a new
letter in February, 2017. Lee stipulates to the dismissal
without prejudice of his claim for negligent supervision.
Venetian's motion. Lee's Title VII claim is
time-barred. While the precise date of Lee's receipt of
the October letter is unknown, given the mailbox rule and his
admission he received the letter, February 24, 2017 is
outside the applicable ninety-day limitation period.
Furthermore, Lee's attorney was not entitled to receive a
copy of the right-to-sue letter. Because Lee's federal
claim is time-barred, I will not exercise jurisdiction over
his state law claims.
requested the issuance of a right-to-sue letter from the EEOC
in September, 2016. ECF No. 19-1. On October 18, 2016, the
EEOC issued its Notice of Right to Sue. ECF No. 15, Ex. B.
That letter was sent to Lee's last known address. In his
deposition, Lee admitted to receiving the letter but could
not recall when beyond the fact that it was in 2016.
See ECF No. 43-1. However, in a subsequent
affidavit, Lee states that he received documents from the
EEOC in October, 2016 but was unaware these documents
included the letter. ECF No. 41-1. In early February, 2017
Lee's attorney discovered the EEOC had issued the letter
but had not sent him a copy. ECF No. 16-1. He called the EEOC
office in Los Angeles, and an investigative support assistant
sent him a copy of the right-to-sue letter along with a
letter stating that he had ninety days to file suit from the
receipt of this new letter dated February 6, 2017.
Id.; ECF No. 16-3. Lee filed his complaint on
February 24, 2017. ECF No. 1.
Treatment of Venetian's motion to dismiss
Federal Rule of Civil Procedure 12(d), when “matters
outside the pleadings are presented to and not excluded by
the court, the motion must be treated as one for summary
judgment” as long as both parties are “given a
reasonable opportunity to present all the material that is
pertinent to the motion.” At the hearing on
Venetian's motion, I asked the parties to file
supplemental briefs, in particular to include Lee's
deposition testimony in the record. ECF No. 42 at 17. I also
gave notice of the possibility of converting the motion into
one for summary judgment. Id. at 16. As my decision
relies on matters outside the pleadings, I will treat
Venetian's motion as one for summary judgment.
Running of the limitation period
a claimant can file a Title VII civil action, [he] must file
a timely charge of discrimination with the EEOC. If the EEOC
dismisses the charge, a claimant has ninety days to file a
civil action. This ninety-day period is a statute of
limitations. Therefore, if a claimant fails to file the civil
action within the ninety-day period, the action is barred.
Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 383
(9th Cir. 1997) (internal citations omitted). 42 U.S.C.
§ 2000e-5(f)(1) “establishes the 90-day period as
running from the giving of such notice rather than from the
date claimant actually receives notice in hand.”
Scholar v. Pac. Bell, 963 F.2d 264, 267 (9th Cir.
1992) (internal quotations omitted). The start of the
limitation period is thus measured “from the date on
which the right-to-sue letter arrived at the claimant's
address of record.” Payan v. Aramark Mgmt. Svcs.,
L.P., 495 F.3d 1119, 1122 (9th Cir. 2007).
the fact of receipt of the letter is undisputed, but the
actual date of receipt is unknown, a three-day mailing
presumption is applied to determine notice. Id. at
1121. This presumption assumes “that the letter
issuance date is also the date on which the letter was
mailed.” Id. at 1123. This presumption is
rebuttable by “evidence suggesting receipt was delayed
beyond the presumed period.” Id. at 1126.
contends that this presumption should apply with respect to
the issuance of the right-to-sue letter on October 18, 2016.
In response, Lee submits an affidavit stating he was never
aware he received the right-to-sue letter. Venetian argues
this declaration directly contradicts Lee's deposition
testimony and should be stricken.
general rule in the Ninth Circuit is that a party cannot
create an issue of fact by an affidavit contradicting his
prior deposition testimony.” Kennedy v. Allied Mut.
Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). To strike a
contradictory affidavit, I must make a “factual
determination that the contradiction was actually a sham,
” and find the inconsistency between deposition
testimony and the subsequent ...