Ching v. Chugach Management Services, Inc.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re 22 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 1/27/2014. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Bernard Suen Chung Ching served by first class mail at the address of record on January 27, 2014.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BERNARD SUEN CHUNG CHING
CHUGACH MANAGEMENT SERVICES, )
CIVIL NO. 13-00023 SOM/KSC
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Bernard Suen Chung Ching says he was
wrongfully terminated on September 1, 2011.
Management Services, Inc., moves for summary judgment, arguing
that Ching did not timely file a charge with the Equal Employment
Opportunity Commission (“EEOC”) and did not timely file the
Complaint in this action.
An unexcused failure to meet either
deadline is fatal to Ching’s claims.
This court need not address
the first alleged failure because Ching did not timely file the
Complaint in this action.
Summary judgment is therefore granted
in favor of Chugach.
There is no dispute that Chugach terminated Ching from
his job on Kwajalein on September 1, 2011.
See Charge of
Discrimination, March 9, 2012, ECF No. 29-6, PageID # 137
(indicating the last date of discrimination as Sept. 1, 2011);
Termination letter, June 25, 2011, ECF No. 22-7, PageID # 115
(indicating that Ching was being terminated effective Sept. 1,
In a filing on April 22, 2013, Ching indicates that he
contacted the EEOC by telephone on February 7, 2012,
approximately 158 days after his termination.
PageID # 65.
See ECF No. 16,
Although this document does not comply with the
requirements of 28 U.S.C. § 1746, the court nevertheless assumes
the factual statements in it to be true for purposes of this
Ching says that the person he talked to at the EEOC told
him that, because he had been working on Kwajalein, he had 300
days from his termination to file a charge of discrimination with
The following day, the EEOC sent Ching a letter.
A charge of job discrimination must be filed
with the EEOC within 180 days from the date
of harm in order to protect your rights.
This 180 day filing deadline may be extended
to 300 days if the charge is also covered by
a state or local job discrimination law.
Therefore, it is important that you submit
the completed questionnaire promptly.
ECF No. 29-5, PageID # 136.
Ching says that, when he initially received the letter
from the EEOC, he still thought that he had 300 days to file the
charge with the EEOC.
He says that only when he later read the
letter more carefully did he see the 180-day deadline mentioned
in the letter.
See ECF No. 16, PageID # 65.
Ching says that, because he was concerned about meeting
the deadline, he went to the EEOC office in Honolulu on February
28, 2012, approximately 179 days after his termination.
says that he turned in a questionnaire to the EEOC on that day.
According to Ching, he went back to the EEOC on March
8, 2012, to sign and date the charge of discrimination prepared
by the EEOC.
That charge was filed with the EEOC on March
9, 2012, approximately 189 days after Ching’s termination.
ECF No. 29-6, PageID # 137.
The original EEOC charge named Kwajalein Range Services
as Ching’s employer.
See ECF No. 29-6, PageID # 137.
13, 2012, Ching amended that charge to name Chugach as his
See ECF No. 22-7, PageID # 116.
evidence that both companies were his employer at various times.
See KRS Employee Performance Review for February 1, 2009, to
January 31, 2010, ECF No. 29-2, PageID # 133; Chugach Employee
Performance Review for January 1, 2010, to December 31, 2010.
However, it was Chugach that terminated him, indicating that it
was most likely his employer at the time of his termination.
ECF No. 26-6.
Although there is a lack of clarity as to which
company employed Ching, this factual question is not material for
purposes of this motion.
On or about September 27, 2012, the EEOC dismissed
Ching’s charge, noting that it had not been timely filed with the
See ECF No. 22-9, PageID # 119.
This Dismissal and Notice
of Rights informed Ching that, if he wanted to file a lawsuit, he
was required to do so within 90 days of his receipt of the
In his deposition, Ching stated that he did not
dispute that the letter was signed and mailed to him on September
It appears that, on the same day, the EEOC called Ching
to let him know that his charge had been dismissed as untimely.
See ECF No. 22-4, PageID # 98 (case log).
Ching stated in his
deposition that this call was to explain that the letter from the
EEOC was in the mail.
See Deposition of Bernard Ching at 116,
ECF No. 22-7, PageID # 113.
Although the EEOC’s notice of dismissal was mailed in
September, Ching says that he did not actually receive the notice
until “around the week before Halloween 2012.”
PageID # 65.
ECF No. 16,
Ching explained that he only checked his post
office box for mail every week or two.
Ching stated that he had
no reason to think that the EEOC’s notice-of-right to sue had not
been timely delivered to his mailbox.
See Deposition of Bernard
Ching at 70, ECF No. 22-7, PageID # 111.
Ching therefore does
not dispute that the letter was delivered to his mailbox in the
normal course or that it sat in his mailbox for several weeks
before he went to the post office to pick it up.
Ching filed the present Complaint on January 15, 2013,
asserting claims under Title VII of the Civil Rights Act of 1964.
See ECF No. 1.
SUMMARY JUDGMENT STANDARD.
Summary judgment shall be granted when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a) (2010).
See Addisu v. Fred Meyer, Inc., 198
F.3d 1130, 1134 (9th Cir. 2000).
The movants must support their
position that a material fact is or is not genuinely disputed by
either “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials”; or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c).
One of the principal purposes of summary judgment is to identify
and dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that fails to
demonstrate facts to establish what will be an essential element
See id. at 323.
A moving party without the ultimate
burden of persuasion at trial--usually, but not always, the
defendant--has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
(9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court those “portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.,
477 U.S. at 323).
“When the moving party has carried its burden
under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted).
The nonmoving party must set forth specific facts
showing that there is a genuine issue for trial.
Serv., Inc., 809 F.2d at 630.
At least some “‘significant
probative evidence tending to support the complaint’” must be
Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.
Co., 391 U.S. 253, 290 (1968)).
See Addisu, 198 F.3d at 1134 (“A
scintilla of evidence or evidence that is merely colorable or not
significantly probative does not present a genuine issue of
“[I]f the factual context makes the non-moving
party’s claim implausible, that party must come forward with more
persuasive evidence than would otherwise be necessary to show
that there is a genuine issue for trial.”
Cal. Arch’l Bldg.
Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at
Accord Addisu, 198 F.3d at 1134 (“There must be enough
doubt for a ‘reasonable trier of fact’ to find for plaintiffs in
order to defeat the summary judgment motion.”).
All evidence and inferences must be construed in the
light most favorable to the nonmoving party.
Inc., 809 F.2d at 631.
T.W. Elec. Serv.,
Inferences may be drawn from underlying
facts not in dispute, as well as from disputed facts that the
judge is required to resolve in favor of the nonmoving party.
When “direct evidence” produced by the moving party
conflicts with “direct evidence” produced by the party opposing
summary judgment, “the judge must assume the truth of the
evidence set forth by the nonmoving party with respect to that
CHING DID NOT TIMELY FILE HIS COMPLAINT.
“Title VII contains several distinct filing
requirements which a claimant must comply with in bringing a
Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1172 as
amended by 815 F.2d 570 (9th Cir. 1987).
To file a claim under
Title VII, a plaintiff must file a charge with the EEOC within
180 days of the last discriminatory act.
See Bouman v. Block,
940 F.2d 1211, 1219 (9th Cir. 1991) (citing 42 U.S.C. § 2000e5(e)).
Another filing requirement for Title VII cases is that a
plaintiff must file a civil action within 90 days of receipt of
an EEOC right-to-sue letter.
See 42 U.S.C. § 2000e–5(f)(1).
Chugach argues that Ching missed both of these deadlines.
Because his Complaint asserts Title VII claims, Ching
was required to file the Complaint within 90 days of his receipt
of the EEOC right-to-sue letter.
See 42 U.S.C. § 2000e–5(f)(1).
Although the right-to-sue letter was mailed to him in September
2012, Ching says that he did not receive it until “around the
week before Halloween 2012.”
Because this action was filed on
January 15, 2013, Ching claims that it was timely filed within 90
days of when he received the right-to-sue letter.
Ching’s argument is not persuasive.
The Ninth Circuit
has interpreted § 2000e–5(f)(1) as creating a rebuttable
presumption that the limitation period begins three days after
the EEOC mails the right-to-sue letter.
See Payan v. Aramark
Management Services Limited Partnership, 495 F.3d 1119 (9th Cir.
In Payan, the Ninth Circuit examined the date on which
the limitations period in § 2000e–5(f)(1) begins to run.
Ninth Circuit noted that, when the date on which the right-to-sue
letter arrives at a claimant’s address of record is known, the
claimant is deemed to have received the notice on that date,
regardless of whether the claimant personally saw the notice on
Id. at 1122.
However, for purposes of § 2000e–5(f)(1), when the date
of the actual receipt of the notice is unknown, the Ninth Circuit
“will estimate that date based on the date of EEOC disposition
and issuance of notice, with some compensation for mailing time.”
A court should presume “that the letter issuance date is
also the date on which the letter was mailed,” unless this
presumption is rebutted with evidence to the contrary.
Once the mailing date is established, courts calculate
the claimant’s date of receipt of that letter by using a “threeday presumption” for mailing.
Id. at 1124-25.
Id. at 1126.
This, too, is a
To determine whether the
presumption has been rebutted, “courts look for evidence
suggesting that receipt was delayed beyond the presumed period.”
For example, a claimant may present evidence that the notice
was mailed later than its typewritten date or that it took longer
than three days to reach the claimant by mail.
claim of a possible mail delay is not enough to rebut the
Instead, “the plaintiff must show that she did not
receive the EEOC’s right-to-sue letter in the ordinary course.”
In Payan, the claimant, proceeding pro se, had filed a
Title VII complaint 98 days after the EEOC dismissed her charge
and issued a right-to-sue letter.
Because there was no dispute
about the date the notice issued, and because the claimant had
submitted no evidence that delivery of the letter was actually
delayed, the Ninth Circuit deemed her to have received the notice
three days after mailing.
Id. at 1121 and 1126-27.
Circuit therefore determined that the statute of limitation set
forth in § 2000e–5(f)(1) barred her claims, even though the
Complaint was filed only a few days late and she was proceeding
Id. at 1127.
Payan is consistent with other Ninth Circuit case law.
In Scholar v. Pacific Bell, 963 F.2d 264 (9th Cir. 1992), the
Ninth Circuit determined that a Complaint was barred by the 90day limitation period in § 2000e–5(f)(1).
In Scholar, the EEOC
mailed a notice of right-to-sue to the claimant.
A mail receipt
was signed by the claimant’s daughter on November 1, 1988.
claimant, however, did not read the letter until a few days after
it was delivered to her home.
The claimant filed a complaint on
February 2, 1989.
Id. at 267.
The Ninth determined that this
complaint was untimely: “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
Id. at 267 (quoting 42 U.S.C. § 2000e-5(f)(1)).
limitation period therefore expired on January 30, 1989, 90 days
after the notice was received by the claimant’s daughter, even
though the claimant did not see that notice for several more
Similarly, in Nelmida v. Shelly Eurocars, Inc., 112
F.3d 380, 384 (9th Cir. 1997), the Ninth Circuit determined that
the limitations period began to run when the post office first
attempted delivery, as § 2000e–5(f)(1) establishes that the 90day period runs from the “giving of such notice,” rather than
from the date a claimant actually receives the notice.
383 (quoting § 2000e–5(f)(1)).
In Nelmida, the post office had attempted to deliver
the original notice on March 19 and 25, 1994, and it appears that
it was returned to the EEOC after a third attempt on April 3,
The EEOC did not know that the claimant in Nelmida had
stopped living with her parents, whose address was what she had
given the EEOC.
The claimant admitted that she often did not
receive mail sent to her parents’ house because it got lost or
because no one told her about it.
Id. at 382.
In early April
1994, the claimant visited her parents’ house and was told that
she had received some mail.
When the mail was not located, the
claimant, thinking that her right-to-sue letter had been lost,
contacted the EEOC to say that she had not received the notice.
The EEOC then mailed another notice, and the claimant received
that notice on April 8, 1994.
The claimant filed a complaint 90
days after receipt of the April 1994 notice, but more than 90
days after delivery of the original notice had been attempted.
Id. at 382.
The Ninth Circuit determined that the complaint was
untimely because the limitation period began running when
delivery of the notice to the address of record was attempted in
March 1994, not when the claimant actually received the notice in
Id. at 384.
In a case factually similar to the present one, the
United States District Court for the Northern District of
California determined that the 90-day limitation period in
§ 2000e–5(f)(1) began running when, in November 2006, the EEOC
mailed the right-to-sue notice to the claimant, not on December
27, 2006, when the claimant checked her mail.
See Samiere v. San
Francisco Unified Sch. Dist., 2007 WL 2947424 (N.D. Cal. Oct. 9,
The claimant in Samiere produced no evidence rebutting
Payan’s three-day presumption.
In other words, the claimant
produced no evidence demonstrating that the letter was not mailed
on the day it was dated or that it was not received in her
mailbox in the normal course, i.e., three days later.
district court therefore determined that the limitation period
began running three days after mailing, not “on the date that
plaintiff decided to go to the post office to pick up the letter
which had been addressed to her at her address of record.”
Applying the analysis in Payan, Scholar, Nelmida, and
Samiere, this court concludes that Ching did not timely file the
Complaint in this matter.
There is no dispute that the right-to-
sue notice was mailed by the EEOC to Ching’s address of record on
September 27, 2012, or that it was actually delivered in the
Ching says only that he did not receive the
letter until the week before Halloween because he failed to check
his mailbox until then, despite having been called by the EEOC
and told that the letter was being sent.
circumstances, this court applies the three-day presumption of
delivery and begins running the 90-day limitation period from
September 30, 2012.
The limitation period expired ninety days
later, on December 29, 2012.
Because Ching did not file the
present Complaint until January 15, 2013, the Complaint is
untimely and barred by the 90-day statute of limitation.
Although the 90-day statute of limitation is subject to
the doctrine of equitable tolling, Ching has made no showing as
to why the period should be tolled.
The Ninth Circuit has noted
that equitable tolling should be sparingly applied on a case-bycase basis.
See Scholar, 963 F.2d at 267-68.
equitable tolling may be applicable when a claimant was tricked
by an adversary or when the EEOC’s notice of the limitation
period was deficient.
“Courts have been generally unforgiving,
however, when a late filing is due to claimant’s failure to
exercise due diligence in preserving his legal rights.”
268 (quotation marks and citation omitted); accord Nelmida, 112
Ching’s failure to get his mail even though he was
told about the notice does not provide the circumstances making
tolling of the limitation period appropriate.
Because Ching did not timely file the present
Complaint, it is dismissed.
This court need not reach Chugach’s
other argument (that Ching failed to timely file a charge with
The Clerk of Court is directed to enter judgment in
favor of Chugach and to close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 27, 2014.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Ching v. Chugach Management Services, Inc.; Civil No. 13-00023 SOM/KSC; ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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