Nelson Chung v. City & County of Honolulu ( 2018 )

NOT FOR PUBLICATION FILED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
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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
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Because Chung conceded below that he was not claiming wrongful discharge,
that claim was waived and is not before the panel.
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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).
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AFFIRMED.
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