Nelson Chung v. City & County of Honolulu

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 27, 2018
• Docket: 16-15310
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 27 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NELSON A. CHUNG, No. 16-15310

Plaintiff-Appellant, D.C. No. 1:14-cv-00314-DKW-BMK v.

CITY AND COUNTY OF HONOLULU, a MEMORANDUM* municipal corporation; PAMELA OKIHARA, Managing Employees; ELIZABETH TSURUDA, Managing Employees; JOHN DOES 1-56; JANE DOES 1-56; DOE PARTNERSHIPS 1-56; DOE CORPORATIONS 1-56; DOE ENTITIES 1-56; DOE GOVERNMENTAL UNITS 1-56,

Defendants-Appellees.

Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding

Argued and Submitted June 15, 2018 Honolulu, Hawaii

Before: TASHIMA, W. FLETCHER, and HURWITZ, Circuit Judges.

Nelson Chung appeals a summary judgment in favor of the City and County

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. of Honolulu and various governmental employees (collectively, “the City”) on

Chung’s (1) Title VII discrimination, constructive discharge, and hostile work

environment claims; (2) Hawaii law discrimination, constructive discharge, and

unlawful work environment claims; and (3) 42 U.S.C. § 1983 claims. Reviewing

the summary judgment de novo, Szajer v. City of L.A., 632 F.3d 607, 610 (9th Cir.

2011), and the district court’s denial of Chung’s Rule 59(a) motion for

reconsideration for abuse of discretion, Smith v. Clark Cty. Sch. Dist., 727 F.3d 950,

954 (9th Cir. 2013), we affirm.

1. Title VII requires that charges be filed with the Equal Employment

Opportunity Commission (“EEOC”) no later than 300 days after the occurrence of

an alleged unlawful employment practice where, as here, the plaintiff pursues state

or local remedies first. 42 U.S.C. § 2000e-5(e)(1); EEOC v. Commercial Office

Prods. Co., 486 U.S. 107, 123–25 (1988). Chung filed charges with the EEOC on

May 8, 2012. Therefore, a Title VII claim about any employment practices

occurring before July 13, 2011 is time-barred.

A. Because Chung last worked in March 2008, his hostile work environment

claim accrued no later than that time and is thus time-barred. Although Chung

argues a “continuing violations” theory, he could not have suffered from a hostile

work environment after he stopped coming to work.

B. We need not decide whether Chung’s constructive discharge claim is also

2 time-barred because he waived that claim on appeal. A constructive discharge claim

requires the employee to terminate his relationship with the employer; otherwise, the

employee has a wrongful discharge claim. See Draper v. Coeur Rochester, Inc., 147

F.3d 1104, 1110 (9th Cir. 1998). On appeal, however, Chung argues that he “did

not ‘resign’” but “believes he was fired pursuant to, among other things, what his

workers’ compensation attorney wrote in his letter, not constructively discharged as

stated in the amended complaint.” Having disavowed the constructive discharge

theory—and instead claiming wrongful termination—Chung has waived the theory

on appeal.1

2. Under Hawaii antidiscrimination law, “[n]o complaint shall be filed after

the expiration of one hundred eighty days after the date . . . [u]pon which the alleged

unlawful discriminatory practice occurred.” Haw. Rev. Stat. § 368-11(c)(1); see

also Ross v. Stouffer Hotel Co., 879 P.2d 1037, 1043 (Haw. 1994) (“[T]he timely

filing of an administrative complaint with the [agency] was a precondition to a civil

suit under HRS § 378–2.”). Chung’s theories of discrimination under Hawaii law

are identical to his federal law theories, and Hawaii looks to “analogous federal

laws” when interpreting its antidiscrimination laws. Schefke v. Reliable Collection

Agency, Ltd., 32 P.3d 52, 69 (Haw. 2001) (quoting Shoppe v. Gucci Am., Inc., 14

1 Because Chung conceded below that he was not claiming wrongful discharge, that claim was waived and is not before the panel.

3 P.3d 1049, 1058 (Haw. 2000)). Chung’s state law antidiscrimination claims are

therefore also untimely.

3. Hawaii’s two-year statute of limitations for personal injuries governs

Chung’s § 1983 claims. Haw. Rev. Stat. § 657-7; see Lukovsky v. City & Cty. of

S.F., 535 F.3d 1044, 1048 (9th Cir. 2008). Chung’s § 1983 claims accrued when he

knew he “was subjected to unequal terms and conditions of employment.” See

TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999) (“Under federal law, a claim

accrues when the plaintiff knows or has reason to know of the injury which is the

basis of the action.”). At the latest, any violations of Chung’s rights occurred before

he left his job, and he makes no claim that he was unaware of the alleged violations

at that time. Chung filed this action on August 19, 2013, and his § 1983 claims are

therefore also time-barred.

4. Chung’s motion for reconsideration sought to “prevent manifest injustice

by addressing equitable tolling” and to “correct a clear error.” The district court did

not abuse its discretion in denying the motion. Equitable tolling is not warranted

because the City did nothing to prevent Chung from filing a discrimination claim

earlier. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990). And the

alleged inexperience or neglect of Chung’s prior attorney in this civil action does not

warrant reconsideration. See Casey v. Albertson’s Inc., 362 F.3d 1254, 1260 (9th

Cir. 2004).

4 AFFIRMED.