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Rush-Shaw v. Usf Reddaway, Inc.

United States District Court, Ninth Circuit

July 9, 2013

Gail L. Rush-Shaw, Plaintiff,
v.
USF Reddaway, Inc., a corporation, Defendant.

ORDER

JAMES A. TEILBORG, Senior District Judge.

Pending before the Court are Defendant's Motion for Summary Judgment on Plaintiff's Title VII claim (the "Motion") (Doc. 21), Plaintiff's Response to Defendant's Motion for Summary Judgment and Cross-Motion for Separate Bench Trial (the "Cross-Motion") (Doc. 24), and Defendant's Reply in Support of Motion for Summary Judgment and Response to Plaintiff's Cross-Motion. (Doc. 33). For the reasons set forth below, Defendant's Motion for Summary Judgment is denied and Plaintiff's Cross-Motion is also denied.

I. BACKGROUND

Plaintiff Gail Rush-Shaw worked for Defendant USF Reddaway, Inc. as the Terminal Manager of Reddaway's Phoenix trucking terminal until Reddaway terminated Plaintiff on March 25, 2011. (Doc. 21 at 2). On April 7, 2011, Plaintiff contacted the U.S. Equal Employment Opportunity Commission ("EEOC") to obtain information regarding her right to file a discrimination suit. ( Id. ). Plaintiff asserts that during that telephone call, the EEOC representative told her she had 360 days to file a claim for discrimination. ( Id. ). For purposes of this motion, Defendant does not dispute Plaintiff's claim that she was told by the EEOC that she had 360 days to file her claim. (Doc. 33 at 6). It is uncontroverted that under the law Plaintiff had until January 19, 2012, or 300 days from the last discriminatory act, to file a charge of discrimination. (Doc. 24 at 2). The parties do not dispute that Plaintiff's 300 days began on March 25, 2011, the date Plaintiff was terminated. (Doc. 24 at 3). It is further undisputed that Plaintiff did not file her charge of discrimination with the EEOC within the 300 day time limit. ( Id. at 3).

On or around February 12, 2012, 313 days after the date Plaintiff was terminated, Plaintiff visited the EEOC's website and located and printed a copy of the EEOC's Intake Questionnaire. (Doc. 22 at ¶ 21).

On February 14, 2012, Plaintiff sent a six-page fax to the EEOC which contained a transmittal form, a cover letter to the EEOC written by Plaintiff, and a copy of the Intake Questionnaire filled out and signed by Plaintiff. (Doc. 22 at ¶ 26). In the cover letter, Plaintiff stated that she desired "to speak with an individual regarding possible gender discrimination" arising from her termination of employment with Defendant. ( Id. at ¶ 28). It is undisputed that Plaintiff did not have contact with anyone at the EEOC between the telephone call on April 7, 2011 and her fax on February 14, 2012. ( Id. at ¶ 27).

On or around February 29, 2012, Plaintiff received a telephone message from an EEOC representative. (Plaintiff's Depo. at p. 62:3-63:54). On March 1, 2012, Plaintiff contacted the EEOC to set up an interview for March 2, 2012. ( Id. at 63:9-63:18). On March 2, 2012, Plaintiff spoke with an EEOC representative over the phone for about an hour. ( Id. at 63:19-64:17). During this telephone call, the EEOC representative informed Plaintiff that it would not be conducting an investigation into Plaintiff's charge because it was "outside their justidiction" but the EEOC would issue Plaintiff a right to sue letter. ( Id. at 65:14-66:9). A few days after the March 2, 2012 telephone call, Plaintiff received the draft charge of discrimination and telephoned the EEOC a third time to make a correction on the draft. ( Id. at 42:1-6).

On March 8, 2012, Plaintiff filed charge of discrimination with the EEOC. (Doc. 24 at 3; Plaintiff's Depo. at p. 74:20-75:5). Plaintiff indicated on the charge that the latest date discrimination took place was on March 25, 2011. (Doc. 22 at ¶ 39).

On March 27, 2012 the EEOC issued a Dismissal and Notice of Right to Sue on Plaintiff's charge because her charge was "not timely filed with the EEOC." (Doc. 22 at ¶ 40). Approximately one week after receiving this notice, Plaintiff sought and retained counsel. ( Id. at ¶ 42).

On May 3, 2012, Plaintiff filed a complaint with this Court seeking equitable relief and money damages for sex discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, as amended. (Doc. 1). Defendant now moves for summary judgment on Plaintiff's claim arguing Plaintiff's claim is time barred because it is undisputed that she filed her charge with the EEOC after the 300 day time limit. (Doc. 21 at 1). Defendant further argues that no equitable exception applies. ( Id. ) Plaintiff's response, in addition to arguing Summary Judgment is inappropriate, moves for a Bench Trial on the equitable tolling issue.

II. LEGAL STANDARD

Summary judgment is appropriate 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." Fed.R.Civ.P. 56(a). "A party asserting that a fact cannot be or is genuinely disputed must support that assertion by... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits, or declarations, stipulations... admissions, interrogatory answers, or other materials, " or by "showing that 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." Id. at 56(c)(1)(A)&(B). Thus, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

III. ANALYSIS

Defendant argues that Plaintiff's claim is time-barred because she failed to file her Charge of Discrimination with the EEOC within the 300-day limit, and Plaintiff's claim is not entitled to equitable tolling. (Doc. 21 at 1). For purposes of the Motion for Summary Judgment, Defendant does not dispute Plaintiff's claim that she was misinformed by the EEOC. (Doc. 33 at 6). Rather, Defendant argues that Plaintiff cannot meet her burden of showing that she exercised "all due diligence" in pursuing her legal rights, and therefore equitable tolling does not apply to save Plaintiff's claim. ( Id. ). In response, Plaintiff argues that the Court should deny Defendant's Motion for Summary Judgment because there is a genuine ...


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