Opinion
No. C 99-5244 MMC, (Docs. 36, 38)
July 12, 2002
ORDER GRANTING DEFENDANT'S MOTION TO AMEND ANSWER; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; VACATING HEARING
Before the Court are defendant California Department of Forestry Fire Protection's motion to amend its answer, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, and motion for summary judgment, pursuant to Rule 56, both filed May 3, 2002. Plaintiff Raymond J. Veronda has filed opposition to the motion for summary judgment, to which defendant has replied. Plaintiff has not filed any opposition or other response to defendant's motion to amend its answer.
I. BACKGROUND
The following facts are either undisputed or stated in the light most favorable to plaintiff.
Plaintiff is a former employee of defendant. On January 31, 1996, defendant demoted plaintiff from Fire Captain to Fire Apparatus Engineer. (See Pl.'s Ex. N.) On March 6, 1996, plaintiff filed an administrative complaint with the Equal Employment Opportunities Commission ("EEOC"), alleging he had been "disciplined and subsequently demoted" in retaliation for having filed an earlier complaint with the EEOC. (See id.) On September 6, 1996, the EEOC mailed plaintiff a dismissal and right-to-sue letter. (See unson Decl. Ex. 2.)
Meanwhile, on or about June 21, 1996, plaintiff was "forced to retire during a Skelly hearing." (See Pl.'s Ex. P.) In July 1996, plaintiff attempted to file a complaint with the EEOC concerning the "forced retirement," but was "turned away" by the EEOC. (See Pl.'s Ex. K.) Plaintiff then contacted a number of federal offices in an attempt to file an administrative complaint, and eventually was told by "Mr. Fowler" with the Department of Interior ("DOI") that plaintiff "had finally come to the right office to file a complaint against [defendant]." (See id.) Plaintiff filed a complaint with the DOI in either July or August of 1996. (See id.)
On July 12, 1996, plaintiff met with EEOC Investigator DeAnna Munson, who advised plaintiff that the administrative claim he had filed with the EEOC on March 6, 1996, would be dismissed. (See Munson Decl. ¶ 2, Ex. 1.) It is unclear whether plaintiffs statement that he was "turned away" refers to the July 12, 1996 meeting.
In addition to filing the above-referenced administrative complaints, plaintiff filed two administrative appeals with the California State Personnel Board ("Personnel Board"), challenging, respectively, the demotion and a three-month suspension. (See Niederberger Decl. Ex. E at 3.) Additionally, plaintiff filed a "whistleblower complaint" with the Personnel Board. (See id. Exs. E, I.) On August 26, 1996, an administrative law judge with the Personnel Board conducted a hearing on all three cases, at which time plaintiff was represented by counsel. (See id. Ex. E at 3.) At the beginning of the hearing, the administrative law judge stated the following:
It is unclear whether this suspension is the above-referenced "forced retirement."
Prior to going on the record today, the parties engaged in settlement negotiations and subsequently requested that I assist with settlement negotiations, and as a result of those negotiations, the parties have arrived at a settlement of that dispute, of all three of these consolidated cases.
(See id. Ex. E at 4.)
The terms of the settlement were placed on the record by the administrative law judge. (See id. Ex. E at 5-7.) As part of the settlement, defendant agreed to pay plaintiff 6,250 as consideration for plaintiff not commencing litigation against defendant or its employees for any acts occurring prior to August 26, 1996. (See id Ex. E at 6.) The settlement agreement was conditioned on approval by the Personnel Board. (See id. Ex. E at 7.) On August 28, 1996, the Personnel Board issued a Decision Approving Stipulation or Settlement. (See id. Ex. I.) On or about November 12, 1996, plaintiff cashed the settlement check. (See id. Ex. B.)
Thereafter, in "around January 1999," the DOI "decided to pass the case [filed by plaintiff with the DOI in July or August 1996] on to the EEOC." (See Pl.'s Answer/ Response to Def.'s Mot. for Summ. J at 16.) On July 22, 1999, plaintiff, apparently still awaiting resolution of that administrative complaint, filed another administrative complaint with the EEOC, alleging that on June 21, 1996, he "was forced to retire during a Skelly Hearing," and that the forced retirement was retaliatory, the same claims plaintiff had filed in July or August 1996 with the DOI. (See Pl.s' Ex. P.) On September 29, 1999, the EEOC dismissed that complaint, on the ground the complaint was time-barred, and issued a right-to-sue letter. (See Pl.'s Ex. Q.)
Plaintiff's opposition is verified.
On December 13, 1999, plaintiff filed the instant action, alleging defendant had subjected plaintiff to "unwarranted harassment in the form of demotions, change of station and day off assignments, and was forced to retire under duress for his own protection (constructive termination)," and that such conduct was retaliatory in nature. (See Compl. ¶ 4.) Plaintiff alleges that these acts occurred "up until June 21, 1996." (See id. ¶ 7.)
On February 9, 2000, the Court granted defendant's motion to dismiss plaintiffs complaint on the ground that plaintiff had failed to timely exhaust his administrative remedies because he had not filed his July 22, 1999 EEOC administrative complaint within 180 days of June 21, 1996. See 42 U.S.C. § 2000e-5 (e)(1) (providing administrative complaint alleging violation of Title VII "shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred"). Thereafter, the Ninth Circuit reversed the dismissal, holding, based on plaintiffs allegation that he had filed an administrative complaint with the DOI in 1996, that plaintiff "may be able to establish the timely, constructive filing of an administrative complaint with an agency with actual or apparent authority to accept EEOC complaints." See Veronda v. California Dep't of Forestry Fire Protection, 2001 WL 283122, at *2 (9th Cir. March 21, 2001). The Ninth Circuit further held that, regardless of whether plaintiff was able to establish a timely constructive filing with the Department of Interior, plaintiff had alleged sufficient facts to "establish the potential applicability of equitable tolling regarding the timeliness of the July 22, 1999 administrative complaint filed with the EEOC." See id. at *3
At the time the Court issued this order, the Court had not been apprised of plaintiff's March 6, 1996 filing with the EEOC.
II. DISCUSSION
A. Motion to Amend
Defendant moves to amend its answer to allege the defense of accord and satisfaction, based on plaintiffs having cashed the check provided by defendant in consideration of plaintiffs promise not to commence litigation against defendant for any acts occurring prior to August 26, 1996. Defendant offers evidence that it had been searching for the check but did not locate it until March 8, 2002. (See Tigno Decl. ¶ 3.)
Rule 15(a) states that leave to amend "shall be freely given when justice so requires." "The propriety of a motion for leave to amend is generally determined by reference to several factors: (1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party.'" Hurn v. Retirement Fund Trust of Plumbing, Heating and Piping Industry, 648 F.2d 1252, 1254 (9th Cir. 1981).
Plaintiff has not filed or otherwise asserted any opposition to defendant's motion to amend and has not claimed any prejudice to his ability to respond to the proposed defense, nor is there any suggestion that the amendment is brought in bad faith. As discussed infra, the proposed amendment is not futile. Finally, even if defendant could have filed the motion earlier, delay, in the absence of prejudice, bad faith or futility, is insufficient to deny a motion to amend. See e.g. Pend Oreille Public Utility Dist. No. 1, 926 F.2d 1502, 1511-12 (9th Cir.) (reversing denial of motion for leave to amend where district court decision was based solely on delay), cert. denied, 502 U.S. 956 (1991); Hurn, 648 F.2d at 1254 (9th Cir. 1981) (holding two-year delay insufficient to deny motion for leave to amend in absence of any other factor weighing against allowing amendment).
The Court further notes that in the original answer, filed May 29, 2001, defendant alleged the affirmative defense of waiver. As discussed infra, defendant alternatively relies on waiver in setting forth the settlement as a defense.
Accordingly, defendant will be granted leave to file its amended answer to allege the defense of accord and satisfaction.
B. Motion for Summary Judgment
Defendant moves for summary judgment on the grounds that plaintiffs claims are barred by the statute of limitations and by the settlement agreement.
For purposes of this motion, defendant is no longer relying on the argument that plaintiff failed to exhaust his administrative remedies.
1. Legal Standard
Rule 56(c) provides that a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
The Supreme Court's 1986 "trilogy" of Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), requires that a party seeking summary judgment show the absence of a genuine issue of material fact. Once the moving party has done so, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" See Celotex, 477 U.S. at 324 (quoting Rule 56 (c)). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). When determining whether there is a genuine issue for trial, "inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." See Matsushita, 475 U.S. at 587 (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
2. Statute of Limitations
Defendant argues that plaintiffs claims are barred because he did not file suit within 90 days of receiving the right-to-sue letter issued by the EEOC on September 6, 1996.
Title VII provides that within ninety days after receipt of a right-to-sue letter "a civil action may be brought against the respondent named in the charge." See 42 U.S.C. § 2000e-5 (f)(1). The ninety-day filing period is a statute of limitations. See Scholar v. Pacific Bell, 963 F.2d 264, 267 (9th Cir.), cert. denied, 506 U.S. 868 (1992). It is undisputed that plaintiff filed an administrative complaint with the EEOC on March 6, 1996 to challenge his demotion, and that the EEOC dismissed that complaint and issued plaintiff a right-to-sue letter on September 6, 1996. Plaintiff did not institute the instant action until December 13, 1999, well over three years from the issuance of the right-to-sue letter.
Defendant offers evidence that an EEOC investigator met with plaintiff in July 1996 and advised plaintiff that the complaint would be dismissed, and that the EEOC, on September 6, 1996, sent plaintiff the dismissal and right-to-sue letter. Plaintiff states that he "[does not] believe there was a right to sue letter even issued" and that he "[does not] recall receiving" the September 6, 1996 letter, but notes that "it most certainly may have come to [his] home." (See Pl.'s Answer/Response to Def.'s Mot. for Summ. J. at 14.)
Where there is no direct evidence as to receipt or non-receipt of a document, a district court may apply the "mailbox rule," which provides that "the proper and timely mailing of a document raises a rebuttable presumption that the document has been received by the addressee in the usual time." See Schikore v. Bankamerica Supplemental Retirement Plan, 269 F.3d 956, 961-62 (9th Cir. 2001). Here, Susan L. McDuffie, District Director of the EEOC, certified that the right-to-sue letter was mailed to plaintiffs address of record on September 6, 1996. (See Munson Decl. Ex. B.) As noted, plaintiff offers no evidence on this issue, other than his inability to recall receipt of the letter. Plaintiffs evidence is not sufficient to rebut the presumption. Cf. Nunley v. City of Los Angeles, 52 F.3d 792, 792-93 (9th Cir. 1995) (holding "specific factual denial of receipt" sufficient to rebut presumption). Thus, plaintiff is deemed to have received the September 6, 1996 right-to- sue letter sometime shortly after September 6, 1996. Because plaintiff did not file a civil action until more than three years later, his claims, to the extent they are included in his March 6, 1996 EEOC complaint, are barred by the statute of limitations. As noted, the March 6, 1996 complaint raised only the December 1995 discipline and demotion.
The right-to-sue letter was mailed to plaintiff at 2447 Jamaica Way, San Leandro, CA 94577, which is the address plaintiff provided on his EEOC complaint. (See Niederberger Decl. Ex. A; Munson Decl. Ex. B.) Plaintiff has also used that address in this action.
If plaintiff, by conceding the right-to-sue letter "may have come to [his] home," is suggesting that someone else "received" but did not deliver the letter to him, plaintiff fares no better. A right-to-sue letter is "received" when a person at the claimant's address of record receives the right-to-sue letter. See Scholar, 963 F.2d at 267 (holding 90-day period in which to file civil action began to run when plaintiffs daughter received right-to-sue letter at plaintiffs place of residence).
Accordingly, plaintiffs claims based on his having been disciplined and his demotion are barred by the statute of limitations.
3. Settlement Agreement
In his complaint, plaintiff alleges that defendant engaged in various retaliatory acts that occurred up to and including June 21, 1996. Defendant argues that plaintiff waived those claims by entering into the above-described settlement agreement. Defendant alternatively argues that there has been an accord and satisfaction of plaintiffs claims because, after the parties entered into the settlement agreement, defendant delivered to plaintiff a check in the amount of the agreed consideration and plaintiff cashed the settlement check. As discussed above, under the terms of the settlement agreement, plaintiff promised not to sue defendant for acts arising on or before August 26, 1996. Plaintiff argues, however, that the settlement agreement should not be enforced because he entered the agreement under duress.
The settlement agreement further provided inter alia, that plaintiff would apply for retirement and defendant would withdraw its demotion and suspension decisions, (see Neiderberger Decl. Ex. E at 5), apparently entitling plaintiff to receive retirement benefits. (See Pl.'s Answer/Response to Def.'s Mot. for Summ. J. at 3.)
Plaintiff also argues that the day after he agreed to the settlement, he wrote a letter to representatives of defendant, stating that he had "no intention of retiring yet." (See Pl.'s Answer/Response to Def.'s Mot. for Summ. J at 17, Ex. A.) Absent duress, however, or other policy considerations not present here, "[a]n agreement announced on the record becomes binding even if a party has a change of heart after he agreed to its terms but before the terms are reduced to writing." See In re Christie, 173 B.R. 890, 891 (Bankr. E.D. Tex. 1994); Doi v. Halekulani Corp., 276 F.3d 1131, 1138 (9th Cir. 2002) (citing favorably to Christie).
"The construction and enforcement of settlement agreements are governed by principles of local law which apply to interpretation of contracts generally." See Jeff D. v. Andrus, 899 F.2d 753 759 (9th Cir. 1989). This is true even where the underlying cause of action is federal. See id. (applying state law principles in analyzing settlement of federal civil rights action). Under California law, economic duress "may come into play upon the doing of a wrongful act which is sufficiently coercive to cause a reasonably prudent person faced with no reasonable alternative to succumb to the perpetrator's pressure." See Rich Whillock, Inc. v. Ashton Dev., Inc., 157 Cal.App.3d 1154, 1158 (1984). The wrongful act need not be "in the nature of a tort or crime." See id. "Merely being put to a voluntary choice of perfectly legitimate alternatives," however, is the "antithesis of duress." See In re Executive Life Ins. Co., 32 Cal.App.4th 344, 391 (1995).
Here, plaintiff states that he was "assured by [defendant] at the hearing that there would be continuing adverse actions and mounting legal bills should [plaintiff] not agree to retire immediately." (See Pl.'s Answer/Response to Def.'s Mot. for Summ. J at 2.). Plaintiff further states that defendant gave him two hours in which to make a decision as to whether to accept the terms of the settlement, and told him that the offer would not be renewed. (See id.) Plaintiff argues that he "had no choice but to agree to this demand although it was done against [his] will." (See id. at 3.) Setting a deadline by which to accept a settlement offer is not a wrongful act. "Hard bargaining . . . is acceptable, even desirable, in our economic system." Rich Whillock, 157 Cal.App.3d at 1159. Further, decisions to settle a case in order to avoid the risks and costs of continuing litigation are common. Here, plaintiffs alternative was to have the administrative law judge decide his claims on their merits. Thus, plaintiff was "[m]erely being put to a voluntary choice of perfectly legitimate alternatives." See In re Executive Life, 32 Cal.App.4th at 391. Indeed, not only was plaintiff represented in the settlement negotiations by counsel, but the administrative law judge, at the request of the parties, assisted in the settlement negotiations. In short, there is no evidence from which a fact-finder could conclude that plaintiff entered the settlement agreement under duress.
Additionally, at the time the terms of the settlement were placed on the record, plaintiff advised the judge that he'd had an opportunity to discuss the terms of the settlement with his counsel, that he understood the terms and that he agreed to be bound by them. (See Niederberger Decl. Ex. E at 7-8.)
Accordingly, plaintiff is barred by the settlement agreement from pursuing the claims alleged herein.
CONCLUSION
For the reasons stated above:
1. Defendant's motion to amend is hereby GRANTED. The Clerk shall file defendant's Amended Answer herewith.
2. Defendant's motion for summary judgment is hereby GRANTED.
The Clerk shall close the file and terminate all pending motions.
IT IS SO ORDERED.