671 F.2d 30 (1st Cir. 1982), 81-1046, Holden v. Commission Against Discrimination of Com. of Mass.

Docket Nº:81-1046, 81-1073.
Citation:671 F.2d 30
Party Name:Dec. P 32,439 Elizabeth HOLDEN, Plaintiff-Appellant, v. COMMISSION AGAINST DISCRIMINATION OF the COMMONWEALTH OF MASSACHUSETTS, Douglas Scherer and Francis Lynch, Defendants-Appellees. Elizabeth HOLDEN, Plaintiff-Appellee, v. COMMISSION AGAINST DISCRIMINATION OF the COMMONWEALTH OF MASSACHUSETTS, Defendants-Appellants.
Case Date:February 17, 1982
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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671 F.2d 30 (1st Cir. 1982)

Dec. P 32,439

Elizabeth HOLDEN, Plaintiff-Appellant,



MASSACHUSETTS, Douglas Scherer and Francis Lynch,


Elizabeth HOLDEN, Plaintiff-Appellee,



MASSACHUSETTS, Defendants-Appellants.

Nos. 81-1046, 81-1073.

United States Court of Appeals, First Circuit

February 17, 1982

Argued Dec. 10, 1981.

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Alanna G. Cline, Brighton, Mass., with whom Paul A. Manoff, Boston, Mass., was on brief, for Elizabeth Holden.

Joan Entmacher, Asst. Atty. Gen., Civil Rights Bureau, Public Protection Bureau, with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for Commission Against Discrimination of the Com. of Mass., Etc.

Before ALDRICH, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Elizabeth Holden appeals from the decisions of the district court dismissing her claims under 42 U.S.C. §§ 1983, 1985, and 1988 (the Civil Rights Acts) against the Massachusetts Commission Against Discrimination (MCAD) and two former Commissioners, Douglas Scherer and Francis Lynch, and granting defendants' motion under

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Fed.R.Civ.P. 41(b) to dismiss her Title VII claim. The Civil Rights Acts claims were dismissed as time-barred. The district court dismissed the Title VII claim, 42 U.S.C. § 2000e et seq., on the ground that at the close of her evidence Holden had failed to establish a right to relief. We are presented with questions concerning the application of the appropriate statute of limitations to claims under the Civil Rights Acts and the evidentiary burdens imposed on parties in a Title VII case. We have jurisdiction under 28 U.S.C. § 1291.

Holden, a black woman, was employed as a public information officer at MCAD from March or April, 1970, until August 31, 1973, when she was dismissed. Holden claims that her dismissal was racially motivated; defendants argue that it was based on other, legitimate reasons. By way of background, we review briefly the evidence presented in plaintiff's case. When she was hired, Holden never received a written description of her position, but her principal tasks were to obtain publicity for the MCAD, to both advertise the agency's accomplishments and inform the Massachusetts public of the MCAD's availability to hear discrimination complaints, and to prepare reports summarizing the MCAD's work. Holden's job and her performance went smoothly until Scherer was appointed to the MCAD. Holden's evidence painted a most unattractive portrait of life at the MCAD after Scherer's arrival; petty political interests dominated the activities of most of the upper-level officials. Based on evidence submitted to the district court, it is fair to say that Scherer arrived at the MCAD intent on dominating (if not taking over) the agency, although he was not chairperson. Scherer attempted to reorganize the agency with the result that there was much confusion between Holden and the Commissioners as to whom Holden reported. Apparently loyal to the then-chairperson, Glendora Putnam, Holden resisted to some degree the efforts of Scherer to oversee her work. She continued to work intently, perhaps too much so, according to Putnam. On the other hand, evidence was also presented of cooperation between Holden and all of the Commissioners and of the Commissioners' satisfaction with much of Holden's work. Apart from Holden's own experience, some blacks at the MCAD received less favorable treatment than whites in certain respects, but other blacks, such as Putnam and Holden's successor as public information officer, appeared not to have been subjected to any disparate treatment.

The tension between Holden and the Commissioners came to a head on May 3, 1973, when Holden learned from Scherer and Lynch that she would be discharged. She was in fact fired by vote of 2-1 of the Commission, Scherer and Lynch in favor and Putnam dissenting. On May 4, 1973, Holden filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging race and sex discrimination. The EEOC referred the complaint to the counterpart state agency, MCAD, which because it was Holden's employer, declined to act for conflict of interest reasons and returned the matter to EEOC on May 10, 1973. On August 31, 1973, the EEOC sent a right-to-sue letter to Holden, which she received on September 4. She subsequently filed a complaint on November 28, 1973, charging that MCAD had discriminated against her on the basis of race and sex in violation of 42 U.S.C. § 2000e-2. Apparently because of Holden's difficulty in finding and keeping legal counsel, the complaint was not served on MCAD until June 11, 1975. Holden moved to amend her complaint on July 13, 1979, dropping the sex discrimination allegation, adding claims under 42 U.S.C. §§ 1983, 1985, and 1988 for violation of her first amendment, equal protection, and due process rights, and adding as defendants Scherer and Lynch. By order of December 27, 1979, the district court allowed the amendments.

The district court granted summary judgment for the defendants on the Civil Rights Act claims. The court held that under our decision in Burns v. Sullivan, 619 F.2d 99 (1st Cir.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980), the limitations period applicable to those claims was six months, as provided in Mass.Gen.Laws

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Ann. ch. 151B, § 1 et seq. Even though deciding that the amended claims related back to the time of the filing of the original complaint, the district court found that the limitations period had begun to run on May 3, 1973, the day Holden learned of her discharge, and had expired before November 28, the day the original complaint was filed. The claims were therefore held to be time-barred.

The action did proceed to trial on the Title VII claim of racial discrimination. At the close of plaintiff's case, defendants moved to dismiss under Fed.R.Civ.P. 41(b). The district court granted the motion, finding that Holden had failed to show that her dismissal was the result of race discrimination and that she had been discharged for a legitimate reason, failure to accept the directions of all of the Commissioners of MCAD. The district court was not persuaded that evidence of disparate treatment of blacks and whites at MCAD raised an inference of illegal discrimination against Holden when the direct evidence concerning Holden's discharge revealed no such motive.

The first issue is the applicable statute of limitations. Two questions confront us: what is the appropriate limitations period for Civil Rights Acts claims, and when does the period begin to run. The answer to the first question is dictated by our recent opinions in Hussey v. Sullivan, 651 F.2d 74 (1st Cir. 1981) (per curiam), and Burns v. Sullivan, 619 F.2d 99. The applicable limitations period here is six months. In Burns, we held that in Massachusetts a claim of race discrimination under 42 U.S.C. §§ 1983 and 1985(3) is subject to the six-month limitations period provided for in the "most analogous" state statute, Mass.Gen.Laws Ann. ch. 151B, § 5. Id. at 105-06. In Hussey, we followed the Burns analysis and affirmed Chief Judge Caffrey's ruling, Hussey v. Sullivan, 498 F.Supp. 594, 597-98 (D.Mass.1980), that a claim of political discrimination under 42 U.S.C. §§ 1983 and 1985(3) was also subject to a six-month limitations period, although this period is contained in a different analogous statute, Mass.Gen.Laws Ann. ch. 31, § 42. Hussey v. Sullivan, 651 F.2d at 76.

Holden's amended complaint alleges violation of her first, fifth, and fourteenth amendment rights in contravention of 42 U.S.C. §§ 1983 and 1985. The limitations periods covering her free speech and equal protection claims are both six months, as required under Hussey and Burns, respectively. 1 Holden argues that Hussey and Burns should not apply to her because she does not have available the administrative remedies that are contemplated by the statutes applied in those cases. 2 The unavailability of the state administrative remedies does tend to vitiate the policies we observed in Burns, 619 F.2d at 107, that underlie application of state statutes of limitations to Civil Rights Acts claims. 3 Nevertheless, the statutes applied in Hussey and Burns are still "most analogous" to Holden's claims, and we see no reason to give her a longer limitations period than that available to other public employees in Massachusetts. We do not think that the decision of the Massachusetts legislature not to give certain public employees such as Holden an administrative remedy entitles them to a longer limitations period. Finally, Holden did have available a federal administrative remedy under Title VII, the limitations period for which is also approximately six

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months, 42 U.S.C. § 2000e-5(e) (180 days) so application of a six-month period to her free speech and equal protection claims as well as does not seem unfair.

The allegations of fifth and fourteenth amendment violations also contain a due process element, however, for which Burns and Hussey do not provide an immediate answer. We therefore must examine Massachusetts law to find the statute of limitations "most analogous" to a federal claim of a violation of due process in an employee discharge. Four statutes are candidates for "most analogous." Mass.Gen.Laws Ann. ch. 151B, § 5 (discrimination complaints filed with MCAD, six months); Mass.Gen.Laws Ann. ch. 31, § 42 (actions for reinstatement to civil service positions, six months); Mass.Gen.Laws Ann. ch. 260, § 2A (amended 1974) (torts generally, two years); and Mass.Gen.Laws Ann. ch. 260, § 2 (contracts generally, six years). Under Burns, we must make a four-part inquiry: "(1) the nature of the federal cause of action ...; (2) the analogous state causes of action; (3)...

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