Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Elizabeth J. Honaker, Esq., Honaker Law Firm, Billings, MT, for Plaintiff-Appellant.
W. Scott Mitchell, Esq., Charles E. Hansberry, Esq., Holland & Hart, LLP, Billings, MT, for Defendant-Appellee.
Appeal from the United States District Court for the District of Montana, Richard F. Cebull, District Judge, Presiding. D.C. No. CV-02-00172-RFC.
Before: HAWKINS, THOMAS, and BYBEE, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Douglas L. Edman appeals the summary judgment for Shell Oil Company in his Age Discrimination in Employment Act ("ADEA") action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, EEOC v. Luce, Forward, Hamilton
Page 630.
& Scripps, 345 F.3d 742, 746 (9th Cir.2003) (en banc), and we affirm.
Summary judgment was proper because Edman failed to file suit within ninety days of the date the right-to-sue letter was delivered to the most recent address he provided the EEOC. See 42 U.S.C. § 2000e-5(f)(1); Scholar v. Pacific Bell, 963 F.2d 264, 267-68 (9th Cir.1992); cf. Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 383 (9th Cir.1997) (holding that analogous limitations period for Title VII action commences upon postal service's attempt to deliver the right-to-sue letter to last known address and not when claimant receives actual notice).
Edman's contention that equitable tolling should apply here is unavailing because the EEOC sent the right-to-sue letter to the address Edman provided and it was his responsibility to notify the EEOC of any change of address. See 29 C.F.R. § 1601.7(b). Moreover, when Edman admittedly received the right-to-sue letter, he still had ample time to file his suit. Consequently, Edman failed to demonstrate the exceptional circumstances requisite to merit this remedy. See Nelmida, 112 F.3d at 383 (citing Scholar, 963 F.2d at 267).
AFFIRMED.