Appeal from the United States District Court for the Northern District of California. D.C. No. CV-87-01906-VRW. Vaughn R. Walker, District Judge, Presiding.
Before: Betty B. Fletcher, Charles Wiggins, and Alex Kozinski, Circuit Judges. Opinion by Judge Wiggins; Dissent by Judge Fletcher.
Plaintiff/Appellant Phyllis Miller, proceeding pro se, filed sex and age discrimination claims in the district court under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1988), the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634 (1988), and the Equal Pay Act of 1963 (EPA), 29 U.S.C. § 206(d) (incorporated into and enforced through the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201 -219 (1988)). She also asserted claims for retaliation and emotional distress. Miller appeals from the district court's dismissal of her claims as untimely (barred by statutes of limitations and laches) or for failure to state a claim.
Miller is pursuing sex and age discrimination claims against six defendants in their individual capacities: Donald Schupak, Dino La Rosa, Carlo Galazzo, Bui Duc Huy, Don Bohn, and Robert Stewart. Donald Schupak was CEO of Maxwell's International, the corporate owner of Maxwell's Plum restaurant, Miller's employer. La Rosa and Galazzo were both general managers of the restaurant; La Rosa was manager from Miller's initial hiring in 1982 until 1985, and Galazzo was manager from 1985 until Miller's third and final termination in 1986. Huy, Bohn, and Stewart were all lower level employees of Maxwell's Plum.
Miller alleges that when she was hired she was told that she would be promoted, but was not because of her sex and age, and that she worked as a manager of the "Terrace Garden" room but was not paid manager's wages. Miller also alleges that La Rosa reduced her hours and subjected her to a hostile work environment because of her sex and age and retaliated against her for complaining of discrimination to La Rosa. Miller further alleges that in retaliation for her having complained to her union about these actions, La Rosa fired her in July, 1984.
After her firing, Miller filed charges with the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB). NLRB proceedings resulted in Miller's reinstatement as a Maxwell's Plum employee. Thereafter, Miller alleges that Galazzo harassed her and denied her a full time schedule in retaliation for her previous EEOC and NLRB charges. She filed a second NLRB charge on October 30, 1985. Miller alleges that Huy and Bohn gave her notice that she had been fired a second time on November 8, 1985, and that Stewart and Galazzo issued a formal termination notice the next day. Miller also alleges that Galazzo, Bohn, and Stewart refused to write her letters of recommendation in retaliation for her earlier charges and because of sex and age discrimination. These allegations led to a second EEOC charge filed on November 13, 1985.
Sometime in March, 1986, Miller alleges that she was reinstated but then terminated for the third and final time because of retaliatory motives and sex and age discrimination. Miller also alleges that a lawsuit filed by Galazzo against her in March, 1986, constituted malicious prosecution, and she alleges that Galazzo and Schupak denied her unemployment benefits sometime in the Spring of 1986.
After receiving her right-to-sue letter from the EEOC, Miller timely filed an action in the district court on April 24, 1987. Proceeding pro se, Miller was given four opportunities to allege facts that stated a claim against the defendants. After her third amended complaint, the district court finally dismissed Miller's claims on May 18, 1990. The district court then erroneously granted Miller an extension of time to file a motion to alter or amend the judgment. Miller filed her motion on June 27, 1990, and the district court denied it on August 14, 1990.
The district court dismissed Miller's claims as untimely (barred by statutes of limitations and laches) or for failure to state a claim. In addition, Miller's appeal raises a jurisdictional issue. These are all questions of law or at least mixed questions of law and fact and are reviewed de novo. See, e.g., Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989) (both failure to state a claim and subject matter jurisdiction are questions of law and are reviewed de novo), cert. denied, 496 U.S. 937 (1990); In re Hawaii Federal Asbestos Cases, 871 F.2d 891, 893 (9th Cir. 1989) (statute of limitation reviewed de novo).
The first issue we must address is the jurisdictional question raised by Miller's failure to file a timely notice of appeal or motion to extend the appellate filing deadline. See Fed. R. App. P. 4(a)(1), (5). The district court entered its judgment on May 23, 1990. Thus, Miller's notice of appeal should have been filed by June 22, 1990, thirty days after the entry of judgment, or a motion to extend the appellate filing deadline should have been filed by July 23, 1990, within ...