Bob Rhodes v. Raytheon Company

FILED
NOT FOR PUBLICATION FEB 05 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BOB RHODES, an individual, No. 11-17726

Plaintiff - Appellant, D.C. No. 4:10-cv-00625-RCC-
CRP
v.

RAYTHEON COMPANY, a Delaware MEMORANDUM*
corporation,

Defendant - Appellee.

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding

Submitted October 17, 2013**
San Francisco, California

Before: THOMAS and McKEOWN, Circuit Judges, and KENDALL, District
Judge.***

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Virginia M. Kendall, District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
Bob Rhodes appeals the district court’s decision to dismiss his action against

Raytheon Co. for failure to file the complaint within ninety days of receiving a

second Equal Employment Opportunity Commission (“EEOC”) right-to-sue

notice. 42 U.S.C. § 2000e-5(f)(1). Because the parties are familiar with the facts

and procedural history of the case, we need not recount them here. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

The district court correctly calculated the statute of limitations period

applicable to Rhodes’ claim. 42 U.S.C. § 2000e-5(f)(1) requires a claimant to file

a civil law suit “within ninety days” of receiving a right-to-sue notice from the

EEOC. The statute of limitations begins to run from the date on which a right-to-

sue letter is delivered to either the claimant or his attorney, whichever comes first.

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 92-93 (1990). If a recipient is not

sure when the notice arrived, we presume both that it was mailed on its date of

issue and that it arrived three days later, including weekends. Payan v. Aramark

Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1123-26 (9th Cir. 2007).

Here, the second right-to-sue notice was issued, and therefore presumptively

mailed, on July 16, 2010. Rhodes avers he received the second right-to-sue notice

on July 22, 2010. His attorney does not know when it arrived at his office because

2
he was away from the office. Because his attorney does not know when the notice

arrived, the district court properly applied the Payan presumption to find that it

arrived on July 19, 2010. Accounting for the ninetieth day falling on a Sunday, the

deadline was Monday, October 18, 2010. Fed. R. Civ. P. 6(a)(1)(C). Thus, his

October 19, 2010 complaint was filed one day late.

The Payan presumption is rebuttable, but generally only by evidence that

“receipt was delayed beyond the presumed period.” Payan, 495 F.3d at 1126. On

the contrary, courts reject “general claims that mail is sometimes delayed.” Id.

Rhodes attempts to rebut the Payan presumption by arguing that his attorney did

not technically receive the notice until July 29, 2010, because he was away when

the notice arrived.

The district court properly determined that Rhodes failed to rebut the Payan

presumption. Although his attorney was away when the notice arrived, receipt

occurs when the notice is delivered, not when the recipient actually sees it.

Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 383 (9th Cir. 1997) (“The

language of the statute establishes the 90-day period as running from the giving of

such notice rather than from the date claimant actually receives notice in hand.”

(internal quotation marks omitted)).

3
Rhodes’s remaining claims are without merit. He contends that sending a

right-to-sue notice to his attorney without the accompanying correspondence

violates 29 C.F.R. § 1614.605(d). However, that regulation governs federal sector

employment discrimination and does not apply to this case. He complains for the

first time on appeal that the right-to-sue notice was sent by regular mail instead of

certified mail. Because Rhodes did not raise this issue in the district court

proceedings, we will not consider it. See Int’l Union of Bricklayers & Allied

Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.

1985). Finally, because the suit is time-barred even if the second right-to-sue

notice controls, we need not address Raytheon’s argument that the first notice

controls.

For all these reasons, we conclude that the district court properly applied the

Payan three-day mailing presumption to this case.

The district court did not abuse its discretion in denying Rhodes the benefit

of equitable tolling. See Santa Maria v. Pac. Bell, 202 F.3d 1170, 1175 (9th Cir.

2000) (describing standard of review), overruled on other grounds by Socop-

Gonzalez v. I.N.S., 272 F.3d 1176, 1194-96 (9th Cir. 2001) (en banc).

4
Equitable tolling is applied in extreme cases only, such as “when the

EEOC’s notice of the statutory period was clearly inadequate.” Scholar v. Pac.

Bell, 963 F.2d 264, 267-68 (9th Cir. 1992). Courts generally do not apply

equitable tolling “when a late filing is due to [a] claimant’s failure to ‘exercise due

diligence in preserving his legal rights.’” Id. at 268 (quoting Irwin, 498 U.S. at

96). Rhodes argues the EEOC’s notice was “clearly inadequate” because it

handled his case in a confusing manner, with multiple notices sent to his former

address, and had implied that it would send him a third right-to-sue letter.

However, each of the two right-to-sue notices from the EEOC clearly

informed Rhodes of the deadline for him to file suit. Each notice also went to his

attorney. His attorney communicated with the EEOC regarding a third right-to-sue

notice, but learned by August 13, 2010 that no third notice was forthcoming. That

left Rhodes sixty-six days within which to file suit and Rhodes has not shown why

that amount of time was insufficient. The district court did not abuse its discretion

in declining to apply equitable tolling.

AFFIRMED.