                                                                            FILED
                           NOT FOR PUBLICATION                               FEB 13 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JEFFREY MARTIN SCHULMAN,                         No. 12-17561

              Plaintiff - Appellant,             D.C. No. 2:12-cv-01494-RCJ-
                                                 GWF
  v.

WYNN LAS VEGAS, LLC; et al.,                     MEMORANDUM*

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                           Submitted February 9, 2015**
                             San Francisco California

Before: NOONAN and SILVERMAN, Circuit Judges, and HUCK, Senior District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Paul C. Huck, Senior District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
      Jeffery Shulman appeals the district court’s judgment dismissing as time-

barred his employment discrimination action against Wynn Las Vegas, LLC et al.

We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

      We review de novo a district court’s dismissal on statute of limitations

grounds. Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1121 (9th

Cir. 2007). We also review de novo a district court’s grant of summary judgment,

viewing the evidence in the light most favorable to the non-moving party. Douglas

v. California Dep’t of Youth Auth., 271 F.3d 812, 822 (9th Cir.), amended 271 F.3d

910 (9th Cir. 2001).

      The district court’s sua sponte consideration of Wynn’s motion to dismiss as

a motion for summary judgment was not reversible error. A district court may

grant summary judgment sua sponte, Fed. R. Civ. P. 56(f), so long as the parties

are given notice and an opportunity to present new evidence, or the losing party

has been given a “full and fair opportunity to ventilate the issues in the motion.”

United States v. Grayson, 879 F.2d 620, 625 (9th Cir. 1989). Here, Schulman was

given sufficient notice because Wynn’s motion to dismiss alerted him to the statute

of limitations issue. See id. Further, he was given an opportunity to fully ventilate

the timeliness issue because he filed a response to Wynn’s motion, which the

district court considered. See Grove v. Mead Sch. Dist. No. 354, 753 F.2d 1528,


                                           2
1533 (9th Cir. 1985). Schulman has not identified any other argument or evidence

he would have presented if the district court had given him notice of its intention to

decide the case on summary judgment. Thus, reversal for this reason is not

warranted.

      However, the district court committed reversible error in ruling that

Schulman failed to sue within ninety days of his receiving the Equal Employment

Opportunity Commission (“EEOC”) right-to-sue letter. Regardless of whether the

date of receipt was “known,” Schulman’s sworn affidavit sufficed to rebut the

three-day delivery presumption and to create a genuine issue of material fact. See

Payan, 495 F.3d at 1126. The district court failed to provide sufficient reason to

disbelieve Schulman’s testimony that he checks his mailbox daily; that he received

the EEOC letter on May 24, 2012; that he documented the date of receipt; and that

he delivered a copy of the letter to his attorney and informed him of the date of

receipt. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (explaining

that at the summary judgment stage, “[t]he evidence of the non-movant is to be

believed”).

      REVERSED.




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