Date: 04-30-2018

Case Style:

Case Number: 16-56200

Judge: Consuelo M. Callahan

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Central District of California (Los Angeles County)

Plaintiff's Attorney: Armond M. Jackson and Neil Pedersen

Defendant's Attorney: Daniel E. Gardenswartz and Leah S. Strickland

Description: Taylor Scott appeals from the grant of summary
judgment in favor of her former employer, Gino Morena
Enterprises, LLC (“GME”). Scott sued GME alleging
sexual harassment and retaliation under state law. The
parties stipulated to the dismissal of Scott’s state law claims
and Scott’s filing of an amended complaint asserting claims
under Title VII of the Civil Rights Act of 1964. In granting
GME’s motion for summary judgment, the district court
concluded that Scott’s Title VII claims were time-barred and
that Scott failed to meet her burden of establishing a basis
for equitable tolling.
Under Title VII, an aggrieved person wishing to bring a
claim against an employer must exhaust administrative
remedies by filing a charge with the Equal Employment
Opportunity Commission (the “EEOC”) or a qualifying state
agency and receiving a right-to-sue notice. 42 U.S.C.
§ 2000e-5. The primary issue in this appeal is whether,
under 42 U.S.C. § 2000e-5(f)(1), the 90-day period for filing
a civil action begins when the aggrieved person becomes
4 SCOTT V. GINO MORENA ENTER.
eligible to receive a right-to-sue notice from the EEOC or
when the person is actually given a right-to-sue notice.
We hold that the 90-day period referenced in 42 U.S.C.
§ 2000e-5(f)(1) begins when the aggrieved person is given
notice of the right to sue by the EEOC. We also hold that
Scott’s Title VII claims may be based on alleged acts
occurring after she filed her first administrative charge only
to the extent such acts are part of a single unlawful
employment practice. See Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 117 (2002). We thus affirm in part
and reverse in part.
I. Factual Background
Scott began working for GME in April 2011 at a
barbershop located on the United States Marine Corps Base
Camp Pendleton, where she was responsible for providing
customers with haircuts and selling hair products. Scott
alleges Judy Lifesy (a GME Manager) and Katie Shepler (a
GME General Manager) sexually harassed and retaliated
against her. Specifically, Scott alleges that after she turned
down Lifesy’s sexual advances, Lifesy began treating Scott
poorly. Examples of Lifesy’s alleged abusive behavior
include pushing Scott out of the way to ring up customers,
turning down the temperature of the shop to 30 degrees,
turning up the volume of the television in the shop, yelling
at Scott in front of customers, throwing Scott’s work tools in
the sink, and blaming Scott for computer problems.
On November 13, 2013, while Scott was still employed
by GME, she filed a charge with the California Department
of Fair Employment and Housing (the “DFEH”) after
speaking with DFEH representative Karen Rice. Scott’s
handwritten notes from her telephone conversation with
Rice indicate “365 days” in the margin next to “Dept. of Fair
SCOTT V. GINO MORENA ENTER. 5
Employment & Housing” and “w/in 30 days an investigator
will call to determine if actionable.” The notes also indicate
“statue [sic] of lim 300 Days” in the margin next to “EEOC
– Federal coverage (DFEH will send their filing to the
EEOC).” Six days later, the DFEH transferred the duty to
investigate Scott’s charge to the EEOC pursuant to a
worksharing agreement between the DFEH and the EEOC.
On November 25, 2013, the DFEH issued a letter giving
Scott notice of her right to sue. The letter stated the DFEH
had closed Scott’s case “for the following reason:
Administrative Dismissal – Waived to Another Agency.”
The right-to-sue letter also explained that: (1) a civil action
under California’s Fair Employment and Housing Act (the
“FEHA”) “must be filed within one year from the date of this
letter”; (2) Scott’s DFEH charge “is dual filed with the
[EEOC]” and Scott “ha[s] a right to request EEOC to
perform a substantial weight review of [DFEH’s] findings
. . . within fifteen (15) days of . . . receipt of this notice”;
(3) “[a]lthough DFEH has concluded that the evidence and
information did not support a finding that a violation
occurred, the allegations and conduct at issue may be in
violation of other laws”; and (4) Scott “should consult an
attorney as soon as possible regarding any other options
and/or recourse [she] may have regarding the underlying acts
or conduct.” (Emphasis omitted). Scott testified that she
read the DFEH right-to-sue letter.
Scott alleges that on December 22, 2013, approximately
one month after she obtained her first right-to-sue letter,
Lifesy issued Scott’s first warning but described it as her
6 SCOTT V. GINO MORENA ENTER.
second warning.1 Scott then decided to leave GME’s
employ.
Scott did not follow up on her first administrative charge
until October 15, 2014, when she contacted Karen Rice from
the DFEH and received contact information for the EEOC.
That same day, Scott spoke with someone at the EEOC, who
confirmed that Scott’s complaint was being processed and
gave Scott a claim number.
Scott hired a lawyer and filed a second charge with the
DFEH on November 17, 2014. The second charge recounted
Scott’s allegations leading to her first DFEH charge, and
then stated:
After I filed my complaint and received my
right to sue letter, Lifesy and Shepler gave me
a final warning (although this was the very
first warning I received while I was employed
by GM). After the unfair treatment,
harassment and retaliation and the immediate
warning after I filed my DFEH complaint, I
was unable withstand [sic] any further
retaliatory harassing and unfair treatment and
left GMs [sic] employ knowing that they
were setting me up for termination.
Scott received a second DFEH right-to-sue letter on the
same date she filed the second charge. The letter stated that
Scott’s case was being closed because an immediate rightto-
sue notice was requested and that the DFEH would take
no further action on the charge. The letter also stated: “To
obtain a federal Right to Sue notice, you must visit the U.S.
1 Scott does not allege the reason given for the warning.
SCOTT V. GINO MORENA ENTER. 7
Equal Employment Opportunity Commission (EEOC) to file
a complaint within 30 days of receipt of this DFEH Notice
of Case Closure or within 300 days of the alleged
discriminatory act, whichever is earlier.”
II. Procedural Background
On November 20, 2014, Scott filed a complaint in the
Superior Court of California, County of Orange, asserting
FEHA claims only. GME removed the case to federal court
under the federal enclave doctrine. Scott filed a motion to
remand the case to state court, arguing she asserted claims
under state law only. The district court denied the motion.
On May 22, 2015, GME filed a motion for judgment on
the pleadings, seeking dismissal of the FEHA claims as
preempted by the federal enclave doctrine. After receiving
that motion, Scott requested, and obtained, a right-to-sue
notice from the EEOC (associated with her first
administrative charge). The notice, which was issued on
June 3, 2015, stated that “[m]ore than 180 days have passed
since the filing of this charge” and “[t]he EEOC is
terminating its processing of this charge.” Id. The notice
also stated that Scott’s “lawsuit under Title VII . . . must be
filed in a federal or state court WITHIN 90 DAYS of . . .
receipt of this notice; or [the] right to sue based on this
charge will be lost.”
Before Scott filed an opposition to the motion for
judgment on the pleadings, the parties filed a joint motion to
allow Scott to file a First Amended Complaint (the “FAC”)
and for GME to withdraw its motion for judgment on the
pleadings. The proposed FAC included only federal claims
under Title VII. The parties’ stipulation expressly preserved
GME’s right to assert defenses to Scott’s federal claims,
“specifically including any statute of limitations defenses.”
8 SCOTT V. GINO MORENA ENTER.
The district court granted the joint motion, and Scott filed
her FAC.
GME then moved to dismiss the FAC, arguing the Title
VII claims were time-barred. In denying the motion, the
district court assumed, without deciding, that Scott’s Title
VII claims were untimely but ruled that Scott might be
entitled to equitable tolling and that the issue was not
appropriate for resolution on the pleadings.
After the parties subsequently engaged in discovery on
the issue of equitable tolling, GME filed a motion for
summary judgment. The district court granted the motion,
ruling that all of Scott’s claims were time-barred and
equitable tolling did not apply. Scott timely appealed.
III. Standard of Review
We review the grant of summary judgment de novo.
Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th Cir.
2011). “[R]eview is governed by the same standard used by
the trial court under Federal Rule of Civil Procedure 56(c).”
Adcock v. Chrysler Corp., 166 F.3d 1290, 1292 (9th Cir.
1999). The court “must determine, viewing the evidence in
the light most favorable to the nonmoving party, whether
there are any genuine issues of material fact and whether the
district court correctly applied the substantive law.” Id.
IV. Discussion
A. Scott’s claims based on the first administrative
charge are timely
There are effectively two limitations periods for Title VII
claims. First, a claimant must exhaust administrative
remedies by filing a charge with the EEOC or an equivalent
SCOTT V. GINO MORENA ENTER. 9
state agency, like the DFEH, and receiving a right-to-sue
letter. 42 U.S.C. § 2000e-5(e)(1); Jasch v. Potter, 302 F.3d
1092, 1094 (9th Cir. 2002). The charge must be filed within
180 days after the allegedly unlawful employment practice
occurred.2 42 U.S.C. § 2000e-5(e)(1). Second, after
exhausting administrative remedies, a claimant has 90 days
to file a civil action. 42 U.S.C. § 2000e-5(f)(1).
Scott filed her first DFEH charge on November 13, 2013.
Twelve days later, she received a notice giving her the right
to sue under the FEHA and stating that the charge “is dual
filed with the [EEOC].”3 Scott did not file her complaint in
state court until almost a full year later on November 20,
2014. At that time, she still had not received a right-to-sue
notice from the EEOC. On June 3, 2015, the EEOC issued
a right-to-sue notice, and two weeks later, the district court
2 If the charge is initially filed with a state agency that enforces the
state’s own anti-discrimination laws, like the DFEH in California, the
statutory 180-day rule does not apply. Instead, a Title VII charge must
be filed within 300 days after the allegedly unlawful employment
practice or 30 days after notice that the state agency has terminated its
proceedings under state law, whichever is earlier. 42 U.S.C. § 2000e-
5(e)(1).
3 The DFEH “dual filed” Scott’s charge with the EEOC pursuant to
the Worksharing Agreement Between California Department of Fair
Employment and Housing and U.S. Equal Opportunity Commission,
Fiscal Year 2013, and FY 2014 Extension of Worksharing Agreement
(the “Worksharing Agreement”). See Stiefel v. Bechtel Corp., 624 F.3d
1240, 1244 (9th Cir. 2010) (“Under such an agreement, a charge filed
with the DFEH ‘is deemed to have been received by the EEOC on the
same day.’” (quoting Green v. Los Angeles Cty. Superintendent of
Schools, 883 F.2d 1472, 1476 (9th Cir. 1989)). We grant GME’s
unopposed motion for judicial notice to the extent it seeks judicial notice
of the Worksharing Agreement.
10 SCOTT V. GINO MORENA ENTER.
granted the parties’ joint motion to allow Scott to amend her
complaint to assert her Title VII claims.
There is no dispute that Scott timely filed her first
administrative charge. At issue is the second limitations
period, and the dispute turns on whether the 90-day period
to file a civil action begins when the plaintiff receives a rightto-
sue notice from the EEOC or 180 days after the charge is
filed with the EEOC, regardless of when the EEOC issues a
right-to-sue notice. If it is the former, then Scott’s claims are
not time-barred. If it is the latter, Scott’s time to file an
action undoubtedly expired before she sued.
The operative provision of the statute states:
If a charge filed with the Commission
pursuant to subsection (b) of this section is
dismissed by the Commission, or if within
one hundred and eighty days from the filing
of such charge or the expiration of any period
of reference under subsection (c) or (d) of this
section, whichever is later, the Commission
has not filed a civil action under this section
. . . or the Commission has not entered into a
conciliation agreement to which the person
aggrieved is a party, the Commission . . .
shall so notify the person aggrieved and
within ninety days after the giving of such
notice a civil action may be brought against
the respondent named in the charge (A) by
the person claiming to be aggrieved or (B) if
such charge was filed by a member of the
Commission, by any person whom the charge
alleges was aggrieved by the alleged
unlawful employment practice.
SCOTT V. GINO MORENA ENTER. 11
42 U.S.C. § 2000e-5(f)(1). This statutory provision
addresses two related, but distinct, ideas: the EEOC’s
obligation to give notice to the aggrieved person and the
person’s authorization to file a civil action.
The EEOC’s duty to give notice is triggered in two
instances: (1) the EEOC’s dismissal of the administrative
charge, or (2) the EEOC’s failure to file a civil action or enter
a conciliation agreement within 180 days from the filing of
the charge (or the expiration of time periods referenced in
provisions not at issue here).4 If either of these triggering
events occurs, the EEOC “shall so notify the person
aggrieved.” 42 U.S.C. § 2000e-5(f)(1). The corresponding
regulation requires the EEOC’s notice to state that the
claimant may bring an action “within 90 days from receipt
of such authorization.” 29 C.F.R. § 1601.28(e).
The statute does not expressly state when the EEOC
must give such notice. However, it clearly contemplates the
giving of notice sometime after 180 days have expired from
the date the charge is filed.5 42 U.S.C. § 2000e-5(f)(1); see
4 Section 2000e-5(f)(1) refers to the “period of reference under
subsection (c) or (d) of this section.” Those subsections govern when
state or local enforcement proceedings are pending before a claimant
files a charge with the EEOC, which is not at issue here. 42 U.S.C.
§ 2000e-5(c), (d). Based on the sentence structure of this statutory
provision, the phrase “whichever date is later” refers to whichever date
is later between either 180 days from the filing of the charge or the
expiration of the “period in reference under subsection (c) or (d).”
5 The regulations state that the EEOC may issue a right-to-sue notice
before 180 days have expired from the filing of the charge if (1) the
claimant requests a right-to-sue notice and (2) the EEOC determines it is
probable that it will be unable to complete its administrative processing
of the charge within 180 days. 29 C.F.R. § 1601.28(a)(2). “However,
courts are split on the validity of this regulation in view of the express
12 SCOTT V. GINO MORENA ENTER.
also Ming W. Chin et al., Cal. Practice Guide: Employment
Litigation (The Rutter Group 2012) ¶ 16:151 (“To protect
aggrieved individuals from undue delay, the EEOC must
issue a right-to-sue letter upon the potential plaintiff’s
request anytime after 180 days after the charges were filed.”)
(citing 29 C.F.R. § 1601.28(a)(1)).
The language from § 2000e-5(f)(1) addressing the right
to file a civil action may be broken down into two parts: who
may file the suit and when it may be filed. Although not at
issue here, the statute provides that the “person claiming to
be aggrieved” or, if the charge was filed by the EEOC, “the
person whom the charge alleges was aggrieved” may file
suit. 42 U.S.C. § 2000e-5(f)(1). The portion of the statute
addressing the time to file a civil action—the key issue in
this case—is similarly straightforward. The person claiming
to be aggrieved may file a civil action “within ninety days
after the giving of such notice.” Id. The terms “such notice”
could refer only to the notice (identified a few words earlier
in the sentence) the EEOC must give upon the occurrence of
the specified conditions—i.e., the right-to-sue notice. Thus,
under a plain reading of § 2000e-5(f)(1), the 90-day period
in which a claimant may file a civil action begins when the
EEOC gives a right-to-sue notice.6
statutory provision (42 USC § 2000e-5(f)(1)) contemplating such action
only after 180 days.” Ming W. Chin et al., Cal. Practice Guide:
Employment Litigation (The Rutter Group 2012) ¶ 16:152. Consistent
with the regulation, we have held that a plaintiff may file a civil action
within the 180-day period if the EEOC has issued a right-to-sue notice.
See Saulsbury v. Wismer & Becker, Inc., 644 F.2d 1251, 1257 (9th Cir.
1980).
6 Although the statute refers to the 90-day clock running from the
“giving” of the right-to-sue notice, the corresponding regulation requires
SCOTT V. GINO MORENA ENTER. 13
The district court concluded that Scott’s “90-day
window in which to file suit” opened 180 days after Scott’s
claim was constructively filed with the EEOC—or, in other
words, when Scott became eligible for a right-to-sue notice
from the EEOC. To support its conclusion, the court did not
cite the statute but, instead, relied on our unpublished
decision in Rucker v. Sacramento County Child Protective
Services, 462 F. App’x 762, 763 (9th Cir. 2011) (“Once the
DFEH letter issued, an EEOC charge was deemed filed;
Rucker was entitled to a right-to-sue letter from the EEOC
180 days thereafter, or on December 15, 2008.”).7
Rucker, in turn, cites Stiefel v. Bechtel Corp., 624 F.3d
1240 (9th Cir. 2010). The court in Stiefel did not consider
whether the plaintiff timely filed suit within the 90-day
limitations period. Rather, the issue in Stiefel was whether
the plaintiff satisfied the statute’s administrative exhaustion
requirement. See Stiefel, 624 F.3d at 1245 (“[W]hen a
plaintiff files a disability discrimination complaint with a
state agency acting, with respect to ADA complaints, as an
agent of the EEOC, and receives a right-to-sue letter from
the state agency, thereby becoming entitled to an EEOC
right-to-sue letter, the plaintiff need not file a separate
the right-to-sue notice to state that the aggrieved person is authorized to
bring suit “within 90 days from receipt of such authorization.” 29 C.F.R.
§ 1601.28(e)(1) (emphasis added). We express no opinion on any
potential discrepancy between the statute and the regulation.
7 Unpublished dispositions of this court are not precedent except as
provided in Circuit Rule 36-3(a).
14 SCOTT V. GINO MORENA ENTER.
complaint with the EEOC nor receive an EEOC right-to-sue
letter in order to file suit.”).8
Thus, while the issue in this case is whether Scott filed
suit too late, the issue in Stiefel was essentially whether the
claimant filed suit too early. Nonetheless, in generally
describing the time limits for filing suit, the court in Stiefel
observed that “[a]fter receiving an EEOC right-to-sue letter
or becoming eligible for one by the Commission’s inaction,
a plaintiff generally has 90 days to file suit.” Stiefel,
624 F.3d at 1245 (emphasis added) (citing 42 U.S.C.
§ 2000e-5(f)(1)). The question is whether this statement in
Stiefel is dictum or binding precedent. On this point, we
have stated:
A statement is dictum when it is made during
the course of delivering a judicial opinion,
but . . . is unnecessary to the decision in the
case and [is] therefore not precedential. The
line is not always easy to draw, however, for
where a panel confronts an issue germane to
the eventual resolution of the case, and
resolves it after reasoned consideration in a
published opinion, that ruling becomes the
law of the circuit, regardless of whether
doing so is necessary in some strict logical
sense.
Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004)
(internal quotation marks omitted; alterations in original)
8 In light of our holding in Stiefel, Scott is incorrect in suggesting
that a claimant must always wait until the EEOC completes its
investigation, no matter how long the EEOC takes, before filing a civil
suit.
SCOTT V. GINO MORENA ENTER. 15
(quoting Best Life Assur. Co. v. Comm’r, 281 F.3d 828, 834
(9th Cir. 2002) and United States v. Johnson, 256 F.3d 895,
914 (9th Cir. 2001) (Kozinski, J., concurring)); see also
United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992)
(holding that a prior opinion was not controlling because it
did not involve the same issue).
As the sole authority supporting its statement that the 90-
day window to sue begins after a claimant receives an EEOC
right-to-sue letter or becomes eligible for one, Stiefel cited
Surrell v. California Water Serv. Co., 518 F.3d 1097 (9th
Cir. 2008). 624 F.3d at 1245. Although Surrell directly
supports the actual holding in Stiefel—a plaintiff may file
suit if entitled to receive a right-to-sue letter—it does not
involve or address (even in dicta) the question of when the
90-day limitations period begins to run. See Surrell,
518 F.3d at 1105 (“[W]here, as here, a plaintiff is entitled to
receive a right-to-sue letter from the EEOC, a plaintiff may
proceed absent such a letter, provided she has received a
right-to-sue letter from the appropriate state agency.”). In
fact, contrary to GME’s position, Surrell states that an
aggrieved person has 90 days to file suit “[o]nce [the] person
receives an EEOC right-to-sue letter.” Id. at 1104 (citing
42 U.S.C. § 2000e-5(f)(1)). The statement from Surrell that
“it makes no difference whether the plaintiff actually
obtained” a notice from the EEOC must be read in context—
it makes no difference for purposes of determining whether
a plaintiff has exhausted administrative remedies. See id.
Moreover, the court in Stiefel had no occasion to, and
thus did not, consider whether the 90-day limitations
window begins 180 days after EEOC inaction even if the
EEOC does not “notify the person aggrieved” as required by
§ 2000e-5(f)(1). Accordingly, the statement in Stiefel cited
by Rucker is dicta, as it is not necessary to the holding in that
16 SCOTT V. GINO MORENA ENTER.
case and does not appear to originate from reasoned
consideration.
Because we conclude Stiefel is not binding on the
question of when the 90-day limitations period begins, it is
our task to confront the issue de novo. As discussed above,
§ 2000e-5(f)(1) plainly ties the 90-day period to the “giving
of [the right-to-sue] notice,” not eligibility for a right-to-sue
notice.
The district court’s conclusion is not only contrary to the
language of the statute, it arguably would render right-to-sue
notices meaningless. If the mere passage of time triggers not
only the claimant’s right to sue (the issue decided in Surrell
and Stiefel) but also the deadline by which the claimant must
sue (the district court’s conclusion), the EEOC’s giving of
notice after 180 days becomes an idle act.
In urging the panel to follow Steifel’s dictum, GME
argues there should not be two different dates for accrual of
the cause of action and running of the statute of limitations.
In support, GME cites Reiter v. Cooper, 507 U.S. 258, 267
(1993): “While it is theoretically possible for a statute to
create a cause of action that accrues at one time for the
purpose of calculating when the statute of limitations begins
to run, but at another time for the purpose of bringing suit,
we will not infer such an odd result in the absence of any
such indication in the statute.” But Reiter by no means
allows us to interpret a statute of limitations in a manner
contrary to the statute’s plain language.
Moreover, to hold that a plaintiff may sue when the
EEOC has not acted on a charge for 180 days but is not
required to do so until after receiving a right-to-sue notice is
entirely consistent with the differing purposes of
administrative exhaustion and the statute of limitations. The
SCOTT V. GINO MORENA ENTER. 17
purpose of the exhaustion requirement “is ‘to provide an
opportunity to reach a voluntary settlement of an
employment discrimination dispute.’” Jasch, 302 F.3d at
1094 (quoting Blank v. Donovan, 780 F.2d 808, 809 (9th Cir.
1986)). The purpose of a statute of limitations, on the other
hand, “is to require diligent prosecution of known claims,
thereby providing finality and predictability in legal affairs
and ensuring that claims will be resolved while evidence is
reasonably available and fresh.” Statute of Limitations,
Black’s Law Dictionary (10th ed. 2014).
Although a 180-day waiting period provides a
reasonable opportunity for voluntary settlement to occur, at
that point the EEOC does not lose jurisdiction to continue
investigating the matter and to possibly take action. Even
when the EEOC takes more than 180 days to investigate, the
employer, already on notice of the charge, will have a fair
opportunity to take appropriate steps to preserve evidence
while it is reasonably fresh.9 Thus, allowing an aggrieved
person to wait for the agency’s investigation to conclude—
even if it takes more than 180 days—furthers the purpose of
the administrative exhaustion requirement without
undermining the purpose of the 90-day limitations period.
GME also argues that “[a] Title VII plaintiff should not
have an indefinite limitations period where the EEOC has
not acted, particularly where the plaintiff has not shown
diligence.” We addressed that concern in Lynn v. W.
Gillette, Inc., 564 F.2d 1282 (9th Cir. 1977). Lynn involved
two consolidated cases in which both appellants received a
right-to-sue notice more than two years after filing a charge
9 When a charge is filed with the EEOC, the aggrieved person must
serve notice of the charge on “the person against whom such charge is
made.” 42 U.S.C. § 2000e-5(e)(1).
18 SCOTT V. GINO MORENA ENTER.
with the EEOC. Id. at 1283–84. They both filed suit within
90 days after receiving their respective notices. Id. at 1284.
The district court concluded that earlier notices to the
appellants indicating that conciliation efforts had failed
triggered the 90-day limitations period. Id. We reversed,
holding that “the ninety-day period does not begin until the
charging party receives a letter specifically informing him of
his right to sue.” Id. at 1286.10
Critically, the court in Lynn clarified that its holding
“does not imply that a plaintiff’s lack of diligence in filing
an action must be overlooked”:
[A]n aggrieved party may request a Right to
Sue letter from the Commission any time
after 180 days following the filing of the
charge with the Commission. Particularly
where the aggrieved party has consulted
counsel and is aware of this right, it becomes
inequitable at some point for the employee to
delay filing suit. The complainant should not
be permitted to prejudice the employer by
taking advantage of the Commission’s
slowness in processing claims or by
10 Consistent with today’s holding, the Lynn court’s interpretation of
the 90-day period in § 2000e-5(f)(1) focused on the right-to-sue notice
as the triggering event. Although Lynn involved a prior version of
§ 2000e-5(f)(1), that version contained the same key statutory phrase that
a civil action may be brought “within ninety days after the giving of such
notice.” Lynn, 564 F.2d at 1286 n.3 (quoting 42 U.S.C. § 2000e-5(f)(1)
(Supp. V. 1975)).
SCOTT V. GINO MORENA ENTER. 19
procrastinating while being aware that the
Commission intends to take no further action.
Lynn, 564 F.2d at 1287 (footnote omitted).
We have also recognized that a Title VII action may be
barred by the doctrine of laches. In E.E.O.C. v. Alioto Fish
Co., 623 F.2d 86, 88–89 (9th Cir. 1980), the court affirmed
a grant of summary judgment where the EEOC filed suit
62 months after the employee filed the administrative charge
and the employer showed actual prejudice in the form of
evidence lost because of the delay.
GME’s concern about an indefinitely-open limitations
period is thus adequately addressed by existing doctrines and
does not justify interpreting § 2000e-5(f)(1) contrary to its
plain language.
In the alternative, GME argues the 90-day clock under
§ 2000e-5(f)(1) is triggered upon the issuance of a right-tosue
notice by either the EEOC or the DFEH. The only
authority it cites for this proposition is § 2000e-5 and an
unpublished district court decision, Marshall v. City &
County of San Francisco, No. C 14-04409 WHA, 2015 WL
216748, at *1 (N.D. Cal. Jan. 13, 2015). But the statute
makes no reference to a state agency’s right-to-sue notice
starting the 90-day clock. Instead, the statute describes the
duty of “the Commission”—i.e., the EEOC, see 42 U.S.C.
§ 2000e-4(a)—to “notify the person aggrieved” and
provides that a civil action may be brought “within ninety
days after the giving of such notice.” 42 U.S.C. § 2000e-
5(f)(1). Marshall improperly conflates the concepts of
administrative exhaustion and the running of the 90-day
limitations period.
20 SCOTT V. GINO MORENA ENTER.
Accordingly, the district court erred in concluding that
the 90-day clock for Scott to file suit began when she became
eligible to receive a right-to-sue notice, rather than when she
received her right-to-sue notice from the EEOC.11
B. Scott’s claims based on the second administrative
charge are untimely, but her claims may be based
on acts occurring after her first charge under the
continuing violations doctrine
Scott’s FAC asserts two claims under Title VII:
harassment and retaliation. Both claims are based, at least
in part, on conduct that took place before Scott filed her first
DFEH charge. To that extent, her claims are timely for the
reasons stated in this opinion. But Scott’s retaliation claim
is based in part on later conduct. Specifically, Scott alleged
in her second administrative charge that after she filed her
first charge Lifesy and Shepler retaliated against her by
issuing a sham warning in an effort to set her up for
termination.
Under Title VII, a charge must be filed with the DFEH
(and thus “dual-filed” with the EEOC) within 300 days
“after the alleged unlawful employment practice occurred.”
42 U.S.C. § 2000e-5(e)(1) (emphasis added). The district
court granted summary judgment to GME on Scott’s Title
VII claims stemming from the second administrative charge
because she filed the charge more than 300 days after she
left her job on December 22, 2013.
11 Because we hold Scott timely filed her Title VII claims, we need
not address her argument that the district court erred in finding no basis
for equitable tolling.
SCOTT V. GINO MORENA ENTER. 21
Scott does not dispute that her second administrative
charge was untimely, and instead claims that it was
unnecessary. She argues the continuing violations doctrine
allows her to base her Title VII claims on conduct alleged to
have occurred after she filed her first administrative
charge—i.e., retaliation for filing the DFEH charge by
issuing a bogus warning which led to Scott quitting her job.
Generally, a Title VII plaintiff may not base a claim on
conduct occurring outside the statutory time period for filing
a charge (i.e., 300 days before the charge is filed). However,
under the continuing violations doctrine, acts that fall
outside the statutory time period may be actionable. Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002).
The applicability of the continuing violations doctrine
depends on the nature of the plaintiff’s claim. “A hostile
work environment claim is composed of a series of separate
acts that collectively constitute one ‘unlawful employment
practice.’” Morgan, 536 U.S. at 117 (quoting 42 U.S.C.
§ 2000e-5(e)(1)). Consequently, “the entire time period of
the hostile environment may be considered by a court for the
purposes of determining liability” so long as at least one “act
contributing to the claim occurs within the filing period.” Id.
However, Title VII “precludes recovery for discrete acts of
discrimination or retaliation that occur outside the statutory
time period.” Id. at 105. “Each discrete discriminatory act
starts a new clock for filing charges alleging that act.” Id. at
113.
To the extent Scott’s claims are based on discrete acts
occurring after she filed her first DFEH charge—for
example, retaliation for filing the first administrative
charge—the district court did not err in granting summary
22 SCOTT V. GINO MORENA ENTER.
judgment.
12 But Scott may base her Title VII claims on GME’s alleged acts occurring after she filed her first DFEH charge to the extent she can show such acts are part of a single hostile work environment claim. See id. at 117.

* * *

12 To be clear, a determination that the second administrative charge was untimely does not dispose of Scott’s retaliation claim altogether. In support of her retaliation claim, Scott alleges retaliatory conduct occurring before she filed, and generally referenced in, her first administrative charge.

Outcome: We hold that the 90-day period for an aggrieved person to file a civil action under Title VII begins when the person is given notice of the right to sue from the EEOC, not when the person becomes eligible to receive such notice. We also hold that Scott’s Title VII claims may be based on alleged acts occurring after she filed her first DFEH charge only to the extent such acts are part of a single unlawful employment practice. See Morgan, 536 U.S. at 117. We affirm the district court’s grant of summary judgment only as to Scott’s claims that are based on discrete discriminatory or retaliatory acts occurring after Scott filed her first DFEH charge. We otherwise reverse and remand. Costs are to be taxed against the appellee, GME.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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