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Lee v. Venetian Resort Casino LLC

United States District Court, D. Nevada

December 1, 2017

SAM LEE, Plaintiff,



         On 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.

         I grant 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.

         I. BACKGROUND

         Lee 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.

         II. ANALYSIS

         a. Treatment of Venetian's motion to dismiss

         Under 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.

         b. Running of the limitation period

         Before 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).

         When 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.

         Venetian 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.

         “The 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 ...

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