NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAM LEE, Plaintiff

- Appellant,

v. VENETIAN CASINO RESORT, LLC,

Defendant

- Appellee. No. 17

- 17552
D.C. No. 2:17

- cv - 00603

- APG

- VCF

MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding Submitted December 19, 2018 ** San Francisco, California Before: CALLAHAN, N.R. SMITH, and MURGUIA, Circuit Judges. Plaintiff

- appellant Sam Lee (“Lee”) appeals from the grant of summary judgment in favor of his former employer and defendant

- appellee , Venetian Casino Resort, LLC (“Venetian”), where Lee worked as a valet. The district court held that Lee ’ s complaint was time

- barred, and dec lined to grant equitable tolling of the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

JAN 7 2019 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

limitations period. W e have jurisdiction under 28 U.S.C. § 1291 , and we affirm

. A plaintiff must bring a Title VII employment discrimination action in federal court “within ninety day s after the giving of” the EEOC’ s right

- to

- sue
not ice. 42 U.S.C. § 2000e

- 5(f)(1). The start of the limitations period is measured “from the date on which a right

- to

- sue notice letter arrived at the claimant’s address of record.” Payan v. Aramark Mgmt. Servs. Ltd. P ’ ship , 495 F.3d 1119 , 1122 (9th Cir. 2007) (citing Nelmida v. Shelly Eurocars, Inc. , 112 F.3d 380, 384 (9th Cir. 1997); Scholar v. Pac. Bell , 963 F.2d 264, 267 (9th Cir. 1992)). In cases where actual receipt is undisputed but the date of receipt is unknown, we apply a rebuttable presumption that an EEOC letter is received three days after its date of issuance

. Id

. The EEOC issued the right

- to

- sue notice in this case on October 18, 2016 and mailed it to Lee’s address of record and to Venetian’s attorney, but did no t

ma il a copy to Lee’s attorney. Lee acknowledg ed receiving the notice sometime in October 201 6 , but did not inform his attorney

. Lee’s attorney was unaware of the issuance of the notice until February 6, 2017, when he contacted the EEOC to inquire about it. The EEOC then sent Lee’s attorney a copy of the notice and a letter stating that Lee had 90 days from February 6, 2017 to file suit. Lee thereafter filed his suit on February 24, 2017. Applying the three

- day mai ling presumption , Lee’s statute of limitations3

period began running on October 21, 2016, and expired on January 19, 2017.
Because Lee did not file his complaint in feder al court until after this date, his suit was untimely. Contrary to Lee’s assertion, the EEOC was not requir ed to send a copy of the EEOC notice to Lee’s attorney. See 29 C.F.R. § 1601.28. T he EEOC’s February 2017 letter to L ee’s counsel also did not reset th e statute of limitations period, which already had been triggered by the October 2016 notice.
See Nelm ida , 112 F.3d 380. Accordingly , the district court correctly found Lee’s action time

- barred. The district court did not abuse its discretion in declinin g to grant equitable tolling. Equitable tolling is “ rea dily available in extreme cases” based on a case

by

- case analysis, see Scholar , 963 F.2d at 268 (citations omitted), and r elief under the doct rine is applied “only sparingly. ” Irwin v. Dep't of Veterans Affairs , 498
U.S. 89 , 96 (1990) . C ourts have been g enerally unforgiving when a late filin g is due to claimant’s failure “ to exercise due diligence in preserving his legal rights.” Scholar , 963 F.2d at 268 (citing Irwin , 498 U.S. at 96 ); B aldwin Cty. Welcome Ctr.

v. Brown , 466 U.S. 147, 151 (1984) (per cur iam)

. Although Lee had counsel, the EEOC served notice on Lee at his address , and Lee chose not to inform his attorney of the mailing. Lee has not shown that the district court abused its d iscretion in concluding that Lee’s situation did not present an “ extraordinary circumstance ” warranting equitable tolling. United States v. Kwai Fun Wong , 1354

S. Ct. 1625, 16 31 (2015)

. The district court, however, should not have granted Venetian’s request to strike Lee’s affida vit for two reasons. First, Lee’s strick en testimony does not arise
to the level of “ ‘sham’ testimony that flatly contradicts earlier testimony in an attempt to ‘create’ an issue of fact and avoid summary judgment. ” Kennedy v. Allied Mut. Ins. Co. , 952 F.2d 262, 266

- 67 (9th Cir. 1991). Second, the district
court did not “make a factual determination that the contradiction was actually a ‘sham,’” which is requir ed before applying this sanction

. Id

. Nonetheless, striking the affidavit was harmless as it does not affect Lee’s entitlement to reli ef on either statutory or equitable grounds. Accordingly, the district court' s grant of summary judgment is AFFIRMED.