Davis v. Lucent Technologies, 00-1329

• Citation: 251 F.3d 227
• Decision Date: 04 December 2000
• Docket Number: No. 00-1329,00-1329
• Parties: (1st Cir. 2001) LAUREN K. DAVIS, Plaintiff, Appellant, v. LUCENT TECHNOLOGIES, INC., Defendant, Appellee. Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 227

251 F.3d 227 (1st Cir. 2001)

LAUREN K. DAVIS, Plaintiff, Appellant, v. LUCENT TECHNOLOGIES, INC., Defendant, Appellee.

No. 00-1329

United States Court of Appeals For the First Circuit

Heard December 4, 2000

Decided May 30, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

[Copyrighted Material Omitted]

Joshua L. Gordon for appellant.

Brian D. Carlson, with whom Thomas E. Shirley and Choate, Hall & Stewart were on brief, for appellee.

Before Lipez, Circuit Judge, Woodlock^* and O'Toole,^* District Judges.

LIPEZ, Circuit Judge.

Lauren Davis appeals from a judgment of the district court dismissing her claims for sexual harassment and wrongful termination from her position at Lucent Technologies. The court determined that her discrimination claim was barred by the three-year statute of limitations under Massachusetts General Laws chapter 151B and that the termination claim was not timely filed with the Massachusetts Commission Against Discrimination ("MCAD").

This case is procedurally odd because of the interaction between the exhaustion requirement for filing a charge of discrimination with the MCAD and the statute of limitations applicable to the filing of a charge of discrimination in the Massachusetts state court. As noted, Davis presented two claims, wrongful termination and sexual harassment, to the district court. However, the sexual harassment claim that was timely filed with the MCAD was not timely filed in state court, and the wrongful termination claim that was timely filed in state court was not timely filed with the MCAD. For the reasons that follow, these mistakes were fatal to Davis's claims. We affirm the decision of the district court.

I.

We recite the facts in the light most favorable to Davis. See Griel v. Franklin Med. Ctr., 234 F.3d 731, 732 (1st Cir. 2000). Davis was employed as a tester for Lucent Technologies ("Lucent") from 1980 to 1996. This position required her to evaluate the quality of newly manufactured technological equipment. She worked closely with engineers in her department and shared testing equipment with other workers. The parties agree that few women were employed as testers at Lucent.

Davis alleges that she was subject to a hostile work environment because of her sex beginning in 1992. She identifies a series of altercations with male co-workers to support this claim. In August 1993, she attempted to ask an engineer, Fred Abayazzi, a question about one of the products she was testing. He refused to answer, telling her he did not have time to discuss her question. When Davis persisted, Abayazzi grabbed her arm and pushed it behind her, in an apparent effort to read the name on the identification tag she wore on the front of her shirt. At least one witness interviewed during Lucent's investigation of this incident corroborated Davis's charge that Abayazzi yelled at her and pulled her arm. Although Abayazzi was reprimanded for this incident, Lucent also concluded in its written report that Davis was partially at fault.

Davis also described a series of incidents involving William Gaudet and Rafael Rodriguez. In her appeal from the finding of a lack of probable cause by the MCAD, she stated that the men engaged in "intimidating quacking noises and constant laughing and snickering" directed at her. Additionally, Davis claims they were responsible for leaving a joke book at her work station opened to a page containing a "sexist reference" to a quacking joke. Finally, Davis says the two men prevented her from punching in at the time clock in July 1994, as was required by company policy. Rodriguez, who was not a member of Davis's work group, was eventually banned by Lucent from entering her testing area.

Ken Dors transferred into Davis's department in September 1995. Davis claims that Dors refused to share equipment or parts with her and "would constantly respond in an abusive and derogatory manner" when she requested that he cooperate with her. Davis says that Dors also laughed at her when she asked for his assistance. Finally, Davis and Dors collided in one of the narrow aisles of the testing work area, in what Davis characterizes as an intentional attempt to intimidate her. In its position statement submitted to the Equal Employment Opportunity Commission ("EEOC"), Lucent described this incident as a situation where the two employees simply reached the same location at the same moment, and neither of them yielded to the other.

Davis began a medical leave on April 19, 1996, citing the continued harassment she experienced as the reason for her "uncontrollable shaking and crying" at work. She began treatment with a psychologist, Dr. Ellen Becker. Three months later, Lucent ordered Davis to attend an independent medical examination conducted by Dr. Charles R. Morin, a psychiatrist. He concluded that Davis was not disabled due to mental illness, but noted her perception that her coworkers had made her work environment unsafe.

On July 17, 1996, Davis filed a charge of sexual discrimination with the EEOC and the MCAD,¹ alleging that the actions of her coworkers created a hostile work environment. After her medical leave expired and Davis refused to return to work, Lucent terminated Davis from her position on August 7, 1996. Over one year later, in November 1997, Davis tried to amend her administrative charge to include a claim for wrongful termination, but the EEOC rejected that amendment as untimely. The EEOC issued a finding of no probable cause in March, 1998, and the MCAD, relying partly on that determination, issued a notice of final disposition denying Davis's charge in February, 1999. Davis appealed the MCAD's determination to an investigative commissioner at that agency, but her appeal was rejected in May, 1999. On July 16, 1999, Davis filed a complaint in Essex Superior Court, claiming both sexual harassment and wrongful termination. Lucent removed the case to federal district court and filed a motion to dismiss both claims as being untimely. Although Davis had been represented by counsel when she appealed the MCAD's finding of no probable cause, she was acting pro se both when she filed her complaint in state court and when she opposed Lucent's motion to dismiss before the federal district court. She is again represented by counsel in her appeal here.

In granting Lucent's motion, the district court ruled that Davis's sexual harassment claim was barred by the three-year statute of limitations for claims of employment discrimination filed under Massachusetts General Laws chapter 151B. The district court also found that her claim for wrongful termination was barred because she failed to file a charge of discrimination with the MCAD within six months of her termination, an exhaustion requirement imposed by chapter 151B.

II.

The ruling of the district court dismissing Davis's claims was styled as a ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b). However, both parties agreed at oral argument before us that the district court considered evidence outside the pleadings in making that ruling, and that we could appropriately treat the court's determination as a summary judgment ruling. We do so. See Rubert-Torres v. Hospital San Pablo, Inc., 205 F.3d 472, 476 (1st Cir. 2000). Accordingly, our review is de novo, and we view the facts in favor of Davis, the nonmovant below. See Griel, 234 F.3d at 732.

A. Wrongful Termination

We first address Lucent's contention that the wrongful termination claim is time-barred because Davis failed to file a complaint with the MCAD within six months of when she was fired. Section five of the Massachusetts anti-discrimination statute, chapter 151B, requires plaintiffs to file an administrative complaint within six months of the incident giving rise to the claim. See Mass. Gen. Laws ch. 151B, § 5; see also Andrews v. Arkwright Mut. Ins. Co., 673 N.E.2d 40, 41 (Mass. 1996); Carter v. Commissioner of Correction, 681 N.E.2d 1255, 1259 (Mass. App. Ct. 1997). "The purpose of mandatory submission to the MCAD process is to provide notice to the prospective defendant and to encourage conciliation and settlement of disputes." Fant v. New England Power Serv. Co., 239 F.3d 8, 11 (1st Cir. 2001). This purpose would be thwarted if plaintiffs "were permitted to allege one thing in the administrative charge and later allege something entirely different in a subsequent civil action." Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996).

Terminated on August 7, 1996, Davis should have filed an administrative complaint within six months of that day for her MCAD charge to be timely. However, she did not seek to add the charge of wrongful termination to her administrative complaint alleging sexual harassment until November 1997. Because more than six months had passed since her August 1996 termination, the EEOC denied her request to amend as untimely. Lucent argues that Davis's claim for wrongful termination is thus barred because it was not timely filed with the state administrative agency.

Davis advances five arguments in support of her position that we should consider the wrongful termination claim as though it were timely filed with the MCAD: (1) the termination is reasonably related to her claim of sexual harassment; (2) an investigation of the harassment should have led the MCAD to discover the termination; (3) her filing of a grievance pursuant to her employment contract should toll the six-month filing period; (4) the termination and the alleged harassment are part of a continuing violation; and (5) the filing period should be equitably tolled because the EEOC misled her into not filing a timely complaint about the termination. Of these five arguments, we agree with Lucent that Davis waived the first three by not presenting them to the district court.² The fourth argument, based on the continuing...