Horita

MEMORANDUM *

Plaintiff Shannon C. Horita appeals the district court’s decision to grant Defendant Kauai Island Utility Cooperative’s motion for summary judgment in this employment-related diversity case.

We review de novo the district court’s grant of summary judgment. Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 896 (9th Cir.2008).

1. The district court properly held that Plaintiff had failed to file a charge of discrimination with the Equal Employment Opportunity Commission within 300 days of any discrete act of discrimination. 42 U.S.C. § 2000e-5(e)(l). The latest date on which Plaintiff learned definitively of her impending termination was October 5, 2005, the date of a second letter Defendant sent to Plaintiff. That letter clearly and unequivocally told Plaintiff that her position would be eliminated and that she could be re-employed by Defendant through a 60-day bidding process. The letter dated October 5, 2005, if not the earlier letter relaying the same message on September 28, 2005, was the adverse employment action that triggered the running of the 300-day statute of limitations. See Del. State Coll. v. Ricks, 449 U.S. 250, 258 , 101 S.Ct. 498 , 66 L.Ed.2d 431…

dissenting in part:

I respectfully dissent from part 2 of the court’s decision. I would vacate summary judgment on Horita’s Title VII claim because she has demonstrated a triable issue of equitable tolling or equitable estoppel that would make her Equal Employment Opportunity Commission (EEOC) charge timely. See Bolker v. Comm’r, 760 F.2d 1039, 1042 (9th Cir.1985) (holding we may consider an issue raised for the first time on appeal “when the issue presented is purely one of law and ... depend[s] on the factual record developed below”). Assuming the employer’s decision to terminate Horita became actionable no later than October 5, 2005, the employer’s assurance that she would be reinstated if the human resources department remained in house tolled the filing period until she learned otherwise. See Aronsen v. Crown Zellerbach, 662 F.2d 584 , 595 & n. 22 (9th Cir.1981) (explaining that tolling or estoppel may apply where “the employer’s conduct was found to hold out the possibility of reinstatement or otherwise to ‘lull’ the employee into foregoing a timely filing”).