Unpublished Disposition, 884 F.2d 1395 (9th Cir. 1989)
Annotate this CaseL.J. JULIAN, Plaintiff-Appellant,v.CRYSTAL SPRINGS REHABILITATION CENTER, et al., Defendants-Appellees.
No. 87-2033.
United States Court of Appeals, Ninth Circuit.
Submitted Aug. 31, 1989.* Decided Sept. 5, 1989.
Before TANG, NELSON and REINHARDT, Circuit Judges.
MEMORANDUM**
L.J. Julian challenges the dismissal of his pro se employment discrimination action as untimely. We review de novo, Equal Employment Opportunity Commission v. Hacienda Hotel, No. 88-5563, slip. op. at 9314 (9th Cir. Aug. 10, 1989), and affirm the dismissal.
Julian was discharged on December 4, 1984. On August 21, 1986, he presented an employment discrimination claim to the Equal Employment Opportunity Commission (EEOC)1 , alleging his termination was unlawfully based upon his race, 42 U.S.C. § 2000e-5(e) (1981), and age, 29 U.S.C. § 621-24 (1985). The EEOC rejected the claim as untimely and Julian filed suit February 19, 1987.2 The district court dismissed the claim with leave to amend, instructing Julian to provide an explanation for the 20 month delay between the discharge and the EEOC filing. Julian submitted comments which the district court treated as an amended complaint. The court held that his explanations were insufficient to justify equitable tolling of the statutory filing period and dismissed the complaint.3 Julian timely appealed.
Where, as here, there exist state remedies which are invoked, the claimant's intent to sue must be presented to the Secretary of Labor within 300 days of the alleged unlawful practice. 29 U.S.C. § 626(d) (2) (1985); 42 U.S.C. § 2000e-5(3) (1981); Naton v. Bank of California, 649 F.2d 691, 694 (1981). This limitation is not a jurisdictional requirement but rather is in the nature of statute of limitations subject to equitable modification. Naton, 649 F.2d at 696.. Modification may be based upon (1) equitable tolling, which focuses on the plaintiff's excusable ignorance of the limitations period; or (2) equitable estoppel, which focuses on the defendant's actions. Id.; Funk v. Sperry Corp., 842 F.2d 1129, 1134 (9th Cir. 1988).
Here, Julian failed to file a charge with the Equal Employment Opportunity Commission within the 300 day period set by statute. 42 U.S.C. § 2000e-5(e); 29 U.S.C. § 626(d) (2). In addition, he failed to provide an explanation for the delay sufficient to modify the statutory limitations. See Funk, 842 F.2d at 1134. First, Julian's amended complaint makes no allegations of misconduct on the part of the defendant. Therefore, we find no basis to apply equitable estoppel to modify the statutory limits. See id. Second, Julian's written comments do not give reasons which amount to excusable neglect.3 Therefore, because no justification has been demonstrated for equitable tolling of the statutory time limit for filing his claim, the district court order dismissing Julian's action is affirmed. See Funk, 842 F.2d at 1134; Naton, 649 F.2d at 969.
AFFIRMED.
The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34.4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3
For purposes of Title VII in California, a claim filed at the EEOC also acts to institute a complaint with the appropriate state agency, the California Department of Fair Employment and Housing. See Hacienda, No. 88-5563 slip op. at 9316
Julian also filed a discrimination claim on December 31, 1986, with the San Mateo County Board of Supervisors seeking relief under California tort law. The County rejected the claim as untimely. Julian appealed the dismissal. However, Julian's notice of appeal named only Crystal Springs Rehabilitation Center. His use of et al. on the notice of appeal is insufficient to confer jurisdiction on this court over the County. Torres v. Oakland Scavenger Co., 108 S. Ct. 2405, 2409 (1988)
The court had granted Julian leave to proceed in forma pauperis. The court's dismissal was based upon its finding that a complete defense evident on the face of the complaint rendered the action frivolous under 28 U.S.C. 1915(d). Under the frivolity standard of section 1915(d), the issue is whether appellant has presented a "factual and legal basis ... for the asserted wrong, however inartfully pleaded." Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). We agree with the district court that an untimely complaint is frivolous and justifies sua sponte dismissal because a complete defense is obvious from the pleadings and the deficiency cannot be cured by amendment. Stanger v. city of Santa Cruz, 653 F.2d 1257, 1257-58 (9th Cir. 1986). See id
Julian's comments suggest he did not initially question his dismissal. He says only that "employees react in deferant conditions (violence) or become emosional dis-orianted" (sic). These statements do not indicate which, if either, reaction was provoked in Julian, nor why he failed to pursue a timely claim
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
