Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Jan. 12, 1999.
Appeal from the United States District Court for the District of Oregon Robert E. Jones, District Judge, Presiding.
Before LEAVY, MCKEOWN, and WARDLAW, Circuit Judges.
This dispositionis 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.
Jermaine D. Miranda ("Miranda") appeals from the judgment in favor of Costco Wholesale Corporation ("Costco") on Miranda's claim of race discrimination under 42 U.S.C. § 2000e-5 (1994) ("Title VII"). We have jurisdiction pursuant to 28 U.S.C. § 1331 (1993) and 28 U.S.C.A. § 1332 (West Supp.1998). We review the grant of summary judgment de novo. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998).
The district court found the Title VII claim was not time-barred by the ninety-day statute o limitations found in 42 U.S.C. § 2000e-5(f)(1) (1994). It employed the relation back doctrine to find that the filing of a state cause of action within the state law limitations period was sufficient to sustain the federal claim. Turning to the merits of the claim, the district court found that Miranda advanced insufficient evidence on the question of pretext to withstand summary judgment under the McDonnell Douglas line of cases. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). Because we find that Miranda's Title VIi claim was time-barred, we affirm the district court's judgment on that basis, and do not consider the Title VII claim on its merits.
The district court may be affirmed on any grounds fairly supported by the record. PCCE, Inc. v. United States, 159 F.3d 425, 427 (9th Cir.1998); see also Scholar v. Pacific Bell, 963 F .2d 264, 266 (9th Cir.1992) (affirming Title VII summary judgment on basis of plaintiff's failure to file within the statutory time limit, where district court judgment was based on preemption, but parties had the opportunity to address limitations issue in briefs).
Miranda originally filed his Title VII claim in federal court on May 2, 1995, within ninety days of his February 23, 1995 receipt of a right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC"). The ninety-day period is critical, because the statutory provision allowing an aggrieved person to file a civil action against the respondent named in the EEOC charge, 42 U.S.C. § 2000e-5(f)(1), is a statute of limitations. Scholar, 963 F.2d at 266-67. If the claimant fails to file within the ninety-day period, the action is barred. Id.
After complying with the ninety-day period, however, Miranda voluntarily dismissed the federal complaint without prejudice before serving it upon Costco. The district court correctly ruled that because a voluntary dismissal without prejudice leaves the plaintiff in the same position as though the action had never been brought, the filing of the subsequently dismissed complaint did not toll the statute of limitations. See Wei v. Hawaii, 763 F.2d 370, 372 (9th Cir.1985); Brown v. Hartshorne Pub. Sch. Dist. # 1, 926 F.2d 959, 961 (10th Cir.1991); Wilson v. Grumman Ohio Corp., 815 F.2d 26, 28 (6th Cir.1987) (per curiam).
On June 26, 1995, Miranda filed a state cause of action under OR.REV.STAT.§ 659.030 (1997) arising from the same set of circumstances as his Title VII claim in the Circuit Court of the State of Oregon for the County of Multnomah. This filing was within the one-year limitations period applicable to the state cause of action, but 123 days after his receipt of the right-to-sue letter. Costco removed the state action to federal court on the basis of diversity jurisdiction. Miranda then moved for and was granted leave to file an amended complaint. The amended complaint he filed, however, dropped the state cause of action and alleged only the Title VII claim he had originally filed.
In denying Costco's motion for summary judgment, the district court misplaced reliance on the "relation back" doctrine set forth in FED.R.CIV.P. 15(c). Although the Title VII action might very well have "relate[d] back to the date of the original pleading," that date--June 26, 1995--was 33 days too late. FED.R.CIV.P. 15(c). No court has held that the timely filing under state law of a state cause of action "revives" a time-barred federal claim.
The cases cited by the district court, and relied upon by Miranda for this novel proposition, do not withstand scrutiny. Donnelly v. Yellow Freight Sys., Inc., 874 F.2d 402 (7th Cir.1989), cert. granted in part, 493 U.S. 953 (1989), and aff'd. by, 494 U.S. 820 (1990), stands simply for the proposition that a Title VII claim alleged in an amended complaint will not be time-barred when a state cause of action alleged in the original complaint and arising from the same "conduct, transaction or occurrence," FED.R.CIV.P. 15(c), was filed within the ninety-day statutory period. Donnelly, 874 F.2d at 410. The other three cases cited by the district court, Cheek v. Western and S. Life Ins. Co., 31 F.3d 497, 501 (7th Cir.1994); Caldwell v.Federal Express Corp., 908 F .Supp. 29, 35 (D.Me.1995); Conroy v.Boston Edison Co., 758 F.Supp. 54, 58 (D.Mass.1991), each held that a previously unasserted claim was properly before the court because it "related back" to a timely filed administrative charge.
Accordingly, Costco is entitled to summary judgment on the ground that Miranda's Title VII claim was statutorily barred. The judgment of the district court is affirmed.
The Ninth Circuit has repeatedly held that the ninety-day limitations period may be equitable tolled. Stoll v. Runyon, No. 97-17398, 1999 WL 12998, at *4 (9th Cir. Jan. 15, 1999); Scholar, 963 F.2d at 267; Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1174 (9th Cir.1986),as amended on denial of reh'g by, 815 F.2d 570 (9187). Miranda does not argue for equitable tolling of his Title VII claim, however, and the record before this court does not support such a finding.
AFFIRMED.