Sam Lee v. Venetian Casino Resort, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAM LEE,
Plaintiff-Appellant,
v.
VENETIAN CASINO RESORT, LLC,
Defendant-Appellee.
No. 17-17552
D.C. No.
2:17-cv-00603-APG-VCF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted December 19, 2018**
San Francisco, California
Before: CALLAHAN, N.R. SMITH, and MURGUIA, Circuit Judges.
Plaintiff-appellant Sam Lee (“Lee”) appeals from the grant of summary
judgment in favor of his former employer and defendant-appellee, Venetian Casino
Resort, LLC (“Venetian”), where Lee worked as a valet. The district court held
that Lee’s complaint was time-barred, and declined to grant equitable tolling of the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 7 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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limitations period. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
A plaintiff must bring a Title VII employment discrimination action in
federal court “within ninety days after the giving of” the EEOC’s right-to-sue
notice. 42 U.S.C. § 2000e-5(f)(1). The start of the limitations period is measured
“from the date on which a right-to-sue notice letter arrived at the claimant’s
address of record.” Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119,
1122 (9th Cir. 2007) (citing Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 384
(9th Cir. 1997); Scholar v. Pac. Bell, 963 F.2d 264, 267 (9th Cir. 1992)). In cases
where actual receipt is undisputed but the date of receipt is unknown, we apply a
rebuttable presumption that an EEOC letter is received three days after its date of
issuance. Id.
The EEOC issued the right-to-sue notice in this case on October 18, 2016
and mailed it to Lee’s address of record and to Venetian’s attorney, but did not
mail a copy to Lee’s attorney. Lee acknowledged receiving the notice sometime in
October 2016, but did not inform his attorney. Lee’s attorney was unaware of the
issuance of the notice until February 6, 2017, when he contacted the EEOC to
inquire about it. The EEOC then sent Lee’s attorney a copy of the notice and a
letter stating that Lee had 90 days from February 6, 2017 to file suit. Lee
thereafter filed his suit on February 24, 2017.
Applying the three-day mailing presumption, Lee’s statute of limitations

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period began running on October 21, 2016, and expired on January 19, 2017.
Because Lee did not file his complaint in federal court until after this date, his suit
was untimely. Contrary to Lee’s assertion, the EEOC was not required to send a
copy of the EEOC notice to Lee’s attorney. See 29 C.F.R. § 1601.28. The
EEOC’s February 2017 letter to Lee’s counsel also did not reset the statute of
limitations period, which already had been triggered by the October 2016 notice.
See Nelmida, 112 F.3d 380. Accordingly, the district court correctly found Lee’s
action time-barred.
The district court did not abuse its discretion in declining to grant equitable
tolling. Equitable tolling is “readily available in extreme cases” based on a case-
by-case analysis, see Scholar, 963 F.2d at 268 (citations omitted), and relief under
the doctrine is applied “only sparingly.” Irwin v. Dep't of Veterans Affairs, 498
U.S. 89, 96 (1990). Courts have been generally unforgiving when a late filing is
due to claimant’s failure “to exercise due diligence in preserving his legal rights.”
Scholar, 963 F.2d at 268 (citing Irwin, 498 U.S. at 96); Baldwin Cty. Welcome Ctr.
v. Brown, 466 U.S. 147, 151 (1984) (per curiam). Although Lee had counsel, the
EEOC served notice on Lee at his address, and Lee chose not to inform his
attorney of the mailing. Lee has not shown that the district court abused its
discretion in concluding that Lee’s situation did not present an “extraordinary
circumstance” warranting equitable tolling. United States v. Kwai Fun Wong, 135

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S. Ct. 1625, 1631 (2015).
The district court, however, should not have granted Venetian’s request to
strike Lee’s affidavit for two reasons. First, Lee’s stricken testimony does not arise
to the level of “‘sham’ testimony that flatly contradicts earlier testimony in an
attempt to ‘create’ an issue of fact and avoid summary judgment.” Kennedy v.
Allied Mut. Ins. Co., 952 F.2d 262, 266-67 (9th Cir. 1991). Second, the district
court did not “make a factual determination that the contradiction was actually a
‘sham,’” which is required before applying this sanction. Id. Nonetheless, striking
the affidavit was harmless as it does not affect Lee’s entitlement to relief on either
statutory or equitable grounds. Accordingly, the district court's grant of summary
judgment is AFFIRMED.

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