NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NELSON A. CHUNG, 

Plaintiff-Appellant, 

 v. 

CITY AND COUNTY OF HONOLULU, a 

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.

No. 16-15310 

D.C. No. 

1:14-cv-00314-DKW-BMK 

MEMORANDUM*

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.

FILED

JUN 27 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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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 

 

1 Because Chung conceded below that he was not claiming wrongful discharge, 

that claim was waived and is not before the panel. 
4 

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.