Rose Marie Butterfly v. Benefis Health System;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSE MARIE BUTTERFLY,
Plaintiff-Appellant,
v.
BENEFIS HEALTH SYSTEM; et al.,
Defendants-Appellees.
No. 20-35257
D.C. No. 4:18-cv-00096-BMM
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted February 17, 2021**
Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.
Rose Marie Butterfly appeals from the district court’s judgment dismissing
her employment discrimination action as barred by the applicable statute of
limitations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal of an action as time-barred, and for clear error any underlying factual
* 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
FEB 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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determinations. EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 584-85 (9th Cir.
2000). We vacate and remand.
The district court dismissed Butterfly’s Title VII and Americans with
Disabilities Act (“ADA”) claims alleging discrimination, retaliation, and a hostile
work environment on the basis that the relevant EEOC charges were not filed
within 180 days of the alleged unlawful practice, and because Butterfly did not file
her complaint within 90 days of receiving her EEOC right to sue letter. However,
we are unable to determine from the district court’s order whether the district court
considered the potential applicability of the alternate 300-day limitation for
Butterfly to file her EEOC charges. See 42 U.S.C. § 2000e-5(e)(1) (Title VII
complainant must file EEOC charge no later than 180 days, or authorized state or
local charge no later than 300 days, after alleged unlawful practice occurred); Fort
Bend County, Texas v. Davis, 139 S. Ct. 1843, 1846 (2019) (“If the state or local
agency has a ‘worksharing’ agreement with the EEOC, a complainant ordinarily
need not file separately with federal and state agencies. She may file her charge
with one agency, and that agency will then relay the charge to the other.”);
Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 823 & n.11 (9th Cir. 2001)
(same statute of limitations for ADA claims as Title VII claims).
We are also unable to determine whether the district court considered the
fact that Butterfly lodged her complaint with the district court within 90 days when

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concluding that she failed to meet the required 90-day deadline. See Fed. R. Civ.
P. 5(d)(2); Riordan v. State Farm Mut. Auto. Ins. Co., 589 F.3d 999, 1004 (9th Cir.
2009) (for purposes of a statute of limitations, a document is considered filed when
it is delivered to the clerk or lodged with the court); Payan v. Aramark Mgmt.
Servs. Ltd. P’ship, 495 F.3d 1119, 1121 (9th Cir. 2007) (42 U.S.C. § 2000e-5(f)(1)
requires a claimant to file a civil lawsuit within 90 days of receiving a right to sue
notice from the EEOC).
The district court also dismissed Butterfly’s 42 U.S.C. § 1981 claims but
failed to consider whether Butterfly timely filed these federal claims within the
applicable four-year statute of limitations. See Jones v. R.R. Donnelley & Sons
Co., 541 U.S. 369, 382-84 (2004) (because § 1981(a) does not contain a statute of
limitations, the four-year “catch all” statute limitations articulated by Congress
applies (citing 28 U.S.C. § 1658(a)); Lukovsky v. City & County of San Francisco,
535 F.3d 1044, 1048 (9th Cir. 2008) (under federal law, a claim accrues “when the
plaintiff knows or has reason to know of the injury which is the basis of the action”
(citation and internal quotation marks omitted)).
Contrary to defendants’ contention, Butterfly did not waive her right to
challenge the magistrate judge’s findings and recommendations because a
determination that the applicable statute of limitations bars a claim is a legal
conclusion. See Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (“[P]arties

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who do not object to a magistrate’s report waive their right to challenge the
magistrate’s factual findings but retain their right to appeal the magistrate’s
conclusions of law.”).
In sum, we vacate the district court’s judgment, and remand for further
consideration as to whether Butterfly’s Title VII, ADA, and § 1981 claims are
timely.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, such as whether Butterfly’s state law claims were properly
dismissed, or arguments and allegations raised for the first time on appeal. See
Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Appellees will bear the costs on appeal.
VACATED and REMANDED.

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